Oriental Insurance
Co., Ltd. Vs Dhanbai Kanji Gadhvi & Ors.
O R D E R
Leave granted.
This appeal is
directed against the judgment dated 15.1.2010 rendered by the learned Single
Judge of the High Court of Gujarat at Ahmedabad in Special Civil Application
No.9400 of 2006 by which the order dated 23.12.2005 passed by the Motor
Accident Claims Tribunal (MACT) Bhuj, Kachchh in M.A.C.P. No.759/97 permitting
the respondents, who had already obtained compensation under Section 163A of
the Motor Vehicles Act 1988 (`the Act' for short), to proceed with the
application filed under section 166 of the Motor Vehicles Act 1988, is
affirmed. The respondents are the original claimants. On 17.6.97, the deceased
viz. Kanji Keshavbhai Gadhvi was riding his two wheeler i.e. Luna. When he
reached near IFFCO, the driver of taxi bearing No.GJ-12-C-9484 who was coming from
the opposite direction dashed the taxi with the Luna as result of which
Kanjibhai lost his life.
Therefore, the
respondents who are legal heirs of the deceased respondent filed MACP No.759 of1997
under Section 166 of the Motor Vehicles Act against the driver and owner of the
taxi as well as against the petitioner who is insurer of the taxi and claimed compensation
of Rs.7,50,000/-. The respondents had thereafter filed an application at Exhibit
6 under section 163A of the Act and claimed compensation of Rs.3,93,500/- on
the principle of no fault liability. The Tribunal had partly allowed the
application filed by the respondents under Section 163A of the Act and ordered
the petitioner to pay a sum of Rs.2,65,500/-with 12% interest vide judgment
dated 18.10.2000.
The case of the petitioner
is that the petitioner had deposited the said amount and the respondents have already
withdrawn and invested the amount of compensation as directed by the Tribunal. The
present petitioner filed an application with a prayer that the application
filed under Section166 which was pending be rejected in view of the decision of
this Court in Oriental Insurance Co. Ltd. Vs. Hansrajbhai V. Kodala & Ors. The
Tribunal by order dated 25.6.2002 granted stay of further proceedings of the
petition filed under Section 166 of the Act till further orders. In the meanwhile,
the petitioner challenged the award passed by the Tribunal under Section 163A
of the Act by filing First Appeal No.3019 of 2007. The appeal was dismissed on
the ground of delay. The respondents thereafter filed an application with a
prayer that they be permitted to proceed with the petition filed under Section
166 of the Motor Vehicles Act and they were ready to give undertaking to give credit
of the amount awarded to them as compensation in the claim petition filed under
Section 163A of the Act.
The Tribunal by an
order dated 23.12.2005 permitted the respondents to proceed with the petition
filed under Section 166 of the Act. The Tribunal also directed that amount
already disbursed in favour of the respondents and invested by them, pursuant
to the award made under Section 163A shall be adjusted to the final award to be
passed under Section 166 of the Motor Vehicles Act. Feeling aggrieved, the petitioner
preferred Special Civil Application No.9400 of 2006 before the High Court. The learned
Single judge of the High Court has rejected the same by judgment dated
15.1.2010 giving rise to the instant appeal. This Court has heard the learned
counsel for the parties. This Court has perused the impugned judgment of the
High Court. The reasons given by the High Court for upholding permission
granted by the Tribunal, to the respondents to proceed further with the
petition filed under Section 166 of the Act, read 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". On
consideration of the object of section 163Aof the Act which was inserted by
Section 51 of the Act54 of 1994 w.e.f. 14-11-1994, and the non-obstante clause with
which sub-section (1) of Sec. 163Acommences, 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 1997which 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. However, in Deepal Girishbhai Soni & Ors.Vs.
United India Insurance Co. Ltd., Baroda (2004) 5 SCC 385, the question which
was considered by a three Judge Bench of this Court was whether a proceeding
under Section 163Aof 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 and166 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 Section163A or under Section
166 of the Act, but not under both. 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 163Aand 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 Section166 of the Act cannot be sustained and
will have to beset aside. For the foregoing reasons, the appeal succeeds. The
order of the Tribunal dated 23.12.2005 allowing the respondents to proceed with
the petition filed under Section 166 of the Motor Vehicles Act, 1988 on the certain
terms and conditions mentioned therein and the impugned judgment of the High
Court upholding order of the Tribunal are hereby set aside. The appeal
accordingly stands disposed of.
.................J.
(J.M. PANCHAL)
..................J.
(H. L. GOKHALE)
NEW
DELHI
JANUARY
17, 2011
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