Rajasthan High Court - Jodhpur
R S R T C vs Smt. Samta Devi & Ors on 21 March, 2018
Author: Virendra Kumar Mathur
Bench: Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1038 / 2001
Rajasthan State Roadways Transport Corporation, through Chief
Manager, Rajasthan State Roadways Transport Corporation,
Ajaymeru Depot, Ajmer (Raj.)
----Appellant
Versus
1. Smt. Samta Devi w/o late Shri Sita Ram Jat,
2. Ram Prakash s/o late Shri Sita Ram Jat,
3. Dinesh s/o late Shri Sita Ram Jat,
4. Kumari Mona D/o late Shri Sita Ram Jat
respondents No.2 to 4 are minors, through their natural
guardian and mother Smt Samta Devi i.e. respondent No.1
5. Smt Dhapu Devi w/o Shri Badri Lal Jat,
6. Badri Lal s/o Shri Harji Ram Jat,
all r/o Bhopalpura, at present Jahajpur, Tehsil Jahajpur, District
Bhilwara (Raj.)
Respondent-Non-claimant
7. Bheem Singh s/o Shri Amar Chand Yadav, through Rajasthan
State Roadways Transport Corporation, Ajaymeru Depot,
Ajmer (Raj.)
----Respondents
_____________________________________________________
For Appellant(s) : Mr M.R. Pareek
For Respondent(s) : Mr Jagdish Vyas, amicus curiae
_____________________________________________________
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment Date of pronouncement: /03/2018 This Civil Misc. Appeal under sec.173 of the Motor Vehicles act has been filed against judgment & award dated 24.04.2001 passed by the Judge, Motor Accident Claims Tribunal, Gulabpura (Bhilwara) in Civil Misc. Case No.246/2000 (Smt Samta Devi v. RSRTC & others), whereby the respondent-claimants have been (2 of 8) [CMA-1038/2001] awarded compensation of Rs.9,14,000/-, payable by the present appellant Rajasthan State Roadways Transport Corporation.
Brief facts of the case are that the respondent-claimants filed a claim petition under sec.163A of the Motor Vehicles Act 1988 {herein after 'the MV Act'} whereby, inter alia, it was alleged that on 06.05.1997 on Devli-Kekri public road, at about 12 Noon, near borders of village Karela Sita Ram (deceased) was travelling in his Tata Mobile Car bearing No.RJ06-C-2444 from Devli to Kekri. It was alleged that the deceased himself was driver of the car and he was driving his car with care & caution, in controlled speed in his side of the road. When the car reached within boundaries of village Karela near Bada Talab, a bus of the appellant-RSRTC bearing No.RJ01-P-1340, which was being driven by its driver in a rash & negligent way with excessive speed and the bus driver drove his bus in wrong side and dashed against car of the deceased. In that accident, the car was damaged and Sita Ram sustained severe injuries on his body and due to the injuries sustained by him, he died at the spot of the accident.
The respondent-claimants filed a claim petition and claimed Rs.21 Lacs in total as compensation under various heads. The appellant filed a reply to the claim petition in which all the averments made in the claim petition were denied and it was submitted that the income of deceased Sita Ram as alleged in the claim petition is imaginary and speculative in nature. It was also submitted that the driver of the bus drove his bus on his right side and deceased Sita Ram drove his car in wrong side and dashed against the bus, hence, the bus driver was not responsible and (3 of 8) [CMA-1038/2001] Sita Ram himself was responsible for the accident in question. Therefore, the appellant is not responsible to pay any compensation for alleged damages claimed by respondent- claimants and in case the respondent-claimants are entitled for any compensation, they may claim the same from insurance company with whom their Tata Mobile car was insured. It was further submitted that the insurance company of said Tata Mobile car is a necessary party and without impleading the necessary party, the claim petition is liable to be rejected. In the alternative, it was submitted that if the Tribunal upon perusal of evidence comes to conclusion that the appellant is also liable for payment of any compensation then the amount of compensation be apportioned as per amount of contribution to the negligence in causing the accident by deceased Sita Ram as well as the driver of the bus of appellant.
The proceedings were taken ex parte against driver of the bus because of his non-participation in the claim proceedings. On the basis of pleadings of the parties, the Tribunal framed 4 issues and proceeded to record evidence of the parties.
After recording evidence and hearing arguments of the parties, the Tribunal passed the judgment and award dated 24.04.2001 and awarded compensation to the tune of Rs.9,14,000/-. The appellant being aggrieved & dis-satisfied with the impugned judgment & award dated 24.04.2001, has preferred this appeal on various grounds.
It was contended that in view of well settled proposition of law, a claim petition under sec.163A of the MV Act is not tenable (4 of 8) [CMA-1038/2001] where income of the victim is/was more than Rs.40,000/- per annum and admittedly, the income of deceased Sita Ram was Rs.80,000/- per annum, as evident from page 9 of the impugned judgment & award and that being so, the claim petition filed by the respondent-claimants ought to have been rejected by the Tribunal. On this count alone, the impugned judgment & award dated 24.04.2001 passed by the Tribunal is liable to be quashed and set aside.
It was argued that apart from above, if at all the Tribunal was inclided to decide the claim petition of respondent-claimants under sec.163A of the MV Act then the Tribunal should have awarded compensation by treating income of the deceased as Rs.40,000/- per annum and then by reduction of 1/3rd amount from said income of Rs.40,000/- in consideration of expenses which the deceased would have incurred towards maintaining himself, if he has been alive, as per Schedule-II appended to sec.163A of the MV Act and in this manner, amount of compensation comes to Rs.4,52,000/- approximately but the Tribunal has awarded compensation of Rs.9,14,000/-, which has resulted in extreme failure of justice and therefore, the impugned judgment & award is liable to be set aside. No other issue has been pressed by the appellant before this Court.
Notices of the appeal were issued to the respondents but nobody has appeared on behalf of respondent-claimants.
An important question is involved in the present case as to whether the compensation awarded under sec.163A of the MV Act is available only to claimants having annual income not more than (5 of 8) [CMA-1038/2001] Rs.40,000/- and whether the cap in Second Schedule of the Act for annual income of Rs.40,000/- of deceased has to be applied in all cases, since as per sec.163A (2) of the MV Act, the claimants are not required to prove negligence of driver of the offending vehicle and only involvement of the vehicle is to be proved. This Court vide order dated 18.08.2015 appointed Mr Jagdish Vyas, Advocate as amicus curiae for the respondent-claimants and requested to assist the court in the present case.
Heard learned counsel for the parties and perused record of the case.
Admittedly, the respondent-claimants filed the claim petition under sec.163A of the MV Act. In para 6 of the claim petition, it was mentioned that deceased Sita Ram was a contractor and truck transport operator. Out of this business, he could earn minimum Rs.80,000 to Rs.90,000 per annum and he was also taking care of contractor-ship business of his uncle Banna Lal Jat worth rupees One Lac per annum. In this way, deceased Sita Ram could earn minimum Rs.15,000/- per month. In support of the pleadings, AW3 Badri Lal, father of deceased Sita Ram, stated in his statements that deceased Sita Ram usually earns rupees One Lac annually and Banna Lal's work was an additional work, from which he used to earn Rs.1,00,000/-. He further stated that deceased Sita Ram was an income-tax payer and income-tax returns were produced in his evidence. Sita Ram was a contractor, for which copy of registration certificate was produced as Ex.8, Banna Lal's registration certificate was produced as Ex.9, Sita Ram's income- tax returns were placed on record as Exhibits 11 & 12, Sita Ram's (6 of 8) [CMA-1038/2001] truck (No.RJ06-G-689) registration certificate was produced as Ex.13 and registration certificate of second truck (No.RJ06-G-360) owned by Sita Ram was produced on record as Ex.14.
Indisputably, on the basis of evidence placed on record, income of deceased Sita Ram was found to be Rs.80,000/- per annum. In view of this fact, it was argued by counsel for the appellant that a claim petition under sec.163A of the MV Act was not tenable where income of the victim is more than Rs.40,000/- per annum and admittedly, in the present case, yearly income of deceased Sita Ram comes to Rs.80,000/-.
In support of his contentions, counsel for the appellant placed reliance on Deepal Girishbhai Soni & others v. United India Insurance Co. Ltd.: 2004 ACJ 934 and contended that if a person invokes provisions of sec.163A of the MV Act, the annual income of Rs.40,000/- shall be treated as cap. The Apex Court observed that in our opinion, the proceedings under sec.163A of the MV Act being a social security provision, provides for a distinct scheme only for those victims of accidents whose income is up to Rs.40,000 per annum. All other claims are required to be determined under Chapter XII of the Act.
Learned counsel also relied on judgment of this Court in National Insurance Co. Ltd. v. Smt Indu Saraswat & another: 2009 RAR 127 (Raj). While referring to the judgment, it was argued that the restriction as provided under sec.163A of the MV Act, for assessment of compensation for victims whose annual income is/was up to Rs.40,000 and person whose annual income is/was more than Rs.40,000 can not avail benefit of (7 of 8) [CMA-1038/2001] provisions under sec.163A of the Act. In that case, it was held that once a person chooses to avail claim under sec.163A of the Act then he is entitled for determination under sec.163A and he can not thereafter contend that he was entitled to more compensation and he has got interim compensation or provisional compensation under sec.163A. Therefore, the person who may have been entitled to more, may claim under sec.166 because of the reason that victim's income was more than Rs.40,000/-.
Similarly, reliance was placed on judgment in the case of (Smt) Tara Sharma & others v. Rajesh Kumar & others:
2010(1) ACTC (Raj.) 43. In that case it was observed that where income of deceased was more than Rs.40,000/- per annum then claim petition under sec.163A of the Act is not tenable, while placing reliance on Guruanna Vadi v. General Manager, Karnataka State Road Transport Corporation: 2001 ACJ 1528 (Karnataka).
In Oriental Insurance Co. Ltd v. Bimla Devi & others:
2008 ACJ 1181, High Court of Himachal Pradesh held that claim application, claiming compensation for death of deceased whose annual income was more than Rs.40,000/-, is not maintainable under sec.163-A of the MV Act and permitted the claimants to file application before the Tribunal, for converting their claim application under sec.166 of the Act.
This Court in Civil Misc. Appeal No.2317/2007: Smt Revati & another v. Rajendra Prasad & others, decided on 16.11.2007 observed as follows:
(8 of 8) [CMA-1038/2001] "The Hon'ble Supreme Court and Hon'ble Gauhati High Court considered such similar matters arising in the same circumstances where interpretation of Section 163-A of the M.V. Act was involved. In Chandra Singh & Anr Vs. Gayatri Devi & Anr's case in para 44 of the Hon'ble Court observed as under:
"From what has been observed and held above in Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd., 2004 ACJ 934 (SC), it is abundantly clear that Section 163-A can be resorted to by only that person, whose annual icnome is not above Rs.40,000/-. In other words, a person whose annual income is more than Rs.40,000/- is not eligible to make an application under Section 163-A for compensation by restricting his income to the slab of Rs.40,000/-.
A bare perusal of the above authoritative announcement made by the Hon'ble Apex Court which was followed by the Hon'ble Gauhati High Court indicates that Section 163-A M.V. Act can be resorted by only that person, whose annual income is not above Rs.40,000/-."
In view of above consideration, the appeal is allowed. The judgment & award dated 24.04.2001 passed by the Motor Accident Claims Tribunal, Gulabpura (Bhilwara) in Misc. Case No.246/2000 is set aside. The respondent- claimants are at liberty to avail any other remedy available to them under law.
(VIRENDRA KUMAR MATHUR)J. mma