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2016 DIGILAW 1321 (GUJ)

Hansaben v. Govind Malshi Danicha

2016-07-14

A.S.SUPEHIA, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Motor Accident Claims Tribunal, Kutch, at Bhuj (hereinafter referred to as "Tribunal") below applications Exh. 34 and 43 and consequently below Exh. 1 in Motor Accident Claim Petition No. 954/1999 by which the learned Tribunal has dismissed the said claim petition rejecting the application submitted by the original claimants to treat the same under Section 166 of the Motor Vehicles Act (hereinafter referred to as "MV Act"), the original claimants have preferred the present First Appeal. 2. Facts leading to the present First Appeal in nut-shell are as under: 2.1. That in vehicular accident which occurred on 27.09.1999, one Budharam Atmaram Maheshwari died. That the original claimants filed MACP No. 954/1999 before the learned Tribunal claiming the compensation for the death of deceased Budharam Atmaram Maheshwari. It appears that said application was for getting the compensation under Section 166 of the MV Act. It appears that in the said application the claimants submitted the application below Exh. 6 claiming the compensation under Section 163-A of the MV Act and by order dated 25.04.2000 the learned Tribunal awarded Rs.5,89,500/- towards compensation under Section 163-A of the MV Act with 12% interest. That the insurance company deposited Rs.6,49,599/- with the learned Tribunal pursuant to the order passed by the learned Tribunal under Section 163-A of the MV Act. However, at the relevant time the said MACP No. 954/1999 was not disposed of. 2.2. That thereafter the insurance company preferred the application Exh. 34 with a prayer to close the proceedings under Section 166 of the MV Act and to dispose of the claim petition placing reliance upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Dhanbai Kanji Gadhvi reported in (2011) 11 SCC 513 inter-alia contending that after the judgment and order passed by the learned Tribunal in the application Exh. 6, awarding compensation under Section 163-A of the MV Act, the claim petition under Section 166 of the MV Act is not maintainable. The original claimants filed counter application Exh. 43 requesting to proceed further with the hearing of the main claim petition and determine the compensation under Section 166 of the MV Act. That by impugned common judgment and order the learned Tribunal has allowed the application Exh. The original claimants filed counter application Exh. 43 requesting to proceed further with the hearing of the main claim petition and determine the compensation under Section 166 of the MV Act. That by impugned common judgment and order the learned Tribunal has allowed the application Exh. 34 preferred by the insurance company and has dismissed the application Exh. 43 preferred by the original claimants and consequently has dismissed the claim petition while passing the order below Exh. 1 on the ground that once the claimants are already paid the compensation under Section 163-A of the MV Act, thereafter the claim petition under Section 166 of the MV Act will not be maintainable. 2.3. Feeling aggrieved and dissatisfied with the impugned order/s passed by the learned Tribunal, the original claimants have preferred the present First Appeal. 3. Shri MTM Hakim, 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 Section 166/163A of the Act. 3.1. 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 v. United India Insurance Co. reported in 2004 (2) GLR 1597 (SC) : AIR 2004 SC 2107 . 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 163-A 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. It is submitted that even while passing order below Exh. 6 i.e. awarding compensation under Section 163-A 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 MV 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 MV Act. It is submitted that as such claimants got meager amount of Rs.5,89,500/- at the relevant time and therefore, claimants are not permitted to proceed further with their application for compensation under Section 166 of the MV Act that there shall be grave injustice to them. It is further submitted by Shri Hakim, learned advocate for the claimants that even amount invested in the FDR, pursuant to the earlier order under Section 163-A of the MV Act are still lying with the Tribunal. 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. 4. Present First Appeal is vehemently opposed by Shri Sunil Parikh, learned advocate appearing on behalf of the respondent No. 3 -insurance company. 4.1. 4. Present First Appeal is vehemently opposed by Shri Sunil Parikh, learned advocate appearing on behalf of the respondent No. 3 -insurance company. 4.1. Shri Parikh, learned advocate appearing on behalf of the insurance company has vehemently submitted that as such the issue involved in the present First Appeal 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 in the case of Dhanbai Kanji Gadhvi (Supra). It is submitted that identical question came to be considered by the Division Bench of this Court in the case of Gitaben W/o. Kishorsinh Jadeja & Ors. v. Govind Malsi Daniya & Ors. rendered in First Appeal No. 1101/2014 and relying upon the aforesaid decisions of the Hon'ble Supreme Court, the Division Bench of this Court has observed and held that once the original claimants are paid the compensation under Section 163-A of the MV Act, thereafter the claim petition under Section 166 of the MV Act shall not be maintainable and consequently confirming the order passed by the learned Tribunal dismissing the claim petition under Section 166 of the MV Act, after the original claimants were paid the compensation under Section 163-A of the MV Act. It is submitted that therefore the learned Tribunal has not committed any error in passing the impugned orders and dismissing the claim petition under Section 166 of the MV Act. 5. Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted and it is not in dispute that the order came to be passed by the learned Tribunal awarding the compensation to the original claimants under Section 163-A of the MV Act on the application below Exh. 6, which was submitted by the original 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 the order below Exh. 6 and awarding the compensation under Section 163-A of the MV Act, the learned Tribunal passed an order of disbursement and investment and directed that after deducting the Court fees, if any, the remaining amount shall be disbursed amongst all the claimants in such a way that original claimant Nos. 6 and awarding the compensation under Section 163-A of the MV Act, the learned Tribunal passed an order of disbursement and investment and directed that after deducting the Court fees, if any, the remaining amount shall be disbursed amongst all the claimants in such a way that original claimant Nos. 2 to 8 each shall get 10% amount out of the total amount deposited with the Tribunal and the original claimant No. 1 -widow shall get the remaining 30% amount out of the deposited amount. The learned Tribunal also passed an order that out of the amount falling to the shares of minor claimant Nos. 2 to 6, 20% amount shall be paid to the original claimant 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 original claimant No. 1, in any scheduled bank for a period of 6 years so far as the claimants Nos. 2 and 3 are concerned for a period of 8 years so far as claimant Nos. 4 and 5 are concerned and for a period of 10 years so far as claimant No. 5 is concerned. The learned Tribunal also passed an order that so far as claimant Nos. 4, 7 and 8 are concerned, out of the amount falling to their shares, 40% amount shall be paid to them in cash by account payee cheques and the remaining 60% amount shall be invested in the FDRs in their respective names in any Scheduled Bank for a period of 6 years. 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 163-A of the MV Act, their application for getting compensation under Section 166 of the MV Act is not required to be proceeded further, as the same is not maintainable. 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 163-A of the MV Act, their application for getting compensation under Section 166 of the MV 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 163-A of the MV Act, they can proceed further with and/or they can be permitted to pursue the application for getting compensation under Section 166 of the MV 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 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 163-A and 166 being final and independent of each other as statutorily provided, a claimant cannot pursue his remedies there under 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 MV Act is final proceeding, by result whereof, the claimants who has been granted compensation under Section 163-A of MV Act, is debarred from proceeding with any (further claims on the basis of fault liability in terms of Section 166 MV Act thereof. After considering the scheme envisaged by Section 163-A of the MV 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 163-A of the MV Act is final and not interim one. What is ruled therein is that the compensation determined and paid under Section 163-A of the MV 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 163-A of the MV Act be treated to be application under Section 140 of the MV 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 MV Act and directed that the Tribunal shall proceed to determine their claim petitions filed under Section 166 of the MV 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 163-A of the MV Act, thereafter, he is precluded from proceeding further with petition filed under Section 166 of the MV 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 MV Act having once the claimants received the compensation under Section 163-A of the MV Act. 5.1 Identical question came to be considered by the Hon'ble Supreme Court in the case of Dhanbhai Kanji Gadhvi and Ors. (supra). 5.1 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 163-A of the MV Act, to proceed with the application filed under Section 166 of the MV 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 166should 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 MV Act and has held that once the claimant get compensation under Section 163A of the MV Act, it shall be treated as final and thereafter the claimants are precluded from pursuing the remedy under Section 166 of the MV Act. 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 Sec. 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. 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 136A of the Act. 12. However, in Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385 : AIR 2004 SC 2107 , 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. 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 there under 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. 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 Sonis 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." 5.2. Identical question came to be considered by the Division Bench of this Court in the case of Gitaben W/o. Kishorsinh Jadeja & Ors. (Supra) and relying upon the aforesaid two decisions of the Hon'ble Supreme Court and the Division Bench of this Court has confirmed the similar order passed by the very Tribunal by which after the compensation awarded under Section 163-A of the MV Act, which the original claimants accepted, thereafter the learned Tribunal dismissed the claim petition under Section 166 of the MV Act. In the aforesaid decision, the Division Bench has specifically observed and held relying upon the aforesaid two decisions of the Hon'ble Supreme Court that once the claimants received the compensation under Section 163-A of the MV Act thereafter the application for compensation under Section 166 of the MV Act shall not be applicable. 5.3. In the aforesaid decision, the Division Bench has specifically observed and held relying upon the aforesaid two decisions of the Hon'ble Supreme Court that once the claimants received the compensation under Section 163-A of the MV Act thereafter the application for compensation under Section 166 of the MV Act shall not be applicable. 5.3. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and order passed by the learned Tribunal dismissing the claim petition for getting the compensation under Section 166 of the MV Act, having received the compensation under Section 163-A of the MV Act. Consequently, the present First Appeal deserves to be dismissed and is, accordingly, No costs.