The New India Assurance Company Ltd v. Smt. Banto Bai & Ors.

with Mr. Neeraj Khanna, Advocate and Mr. Ramesh Sharma, Advocate for the petitioner. *** 1) Whether the judgment should be reported in the digest? Yes M.JEYAPAUL, J.

1. The New India Assurance Company Limited, one of the respondents before the Tribunal aggrieved by the order passed by the Tribunal on 15.5.2012 permitting the alteration of the claim petition from the provisions of Section 166 of the Motor Vehicles Act to one under Section 163-A of the said Act has preferred the present Revision.

2. The fact remains that the claimants having lost their bread winner in the Motor Accident, presented a claim petition invoking both the provisions under Sections 163A/166 of the Act way back on 9.5.1996. The Tribunal chose to dismiss the claim petition by its order dated 27.8.1999, the claimants aggrieved by the same carried in appeal in FAO No. 376 of 2000 before this Court. This Civil Revision No.6469 of 2012(O&M) 2 Court was pleased to set aside the award passed by the Tribunal and remanded the case to the Tribunal vide order dated 15.5.2012 for recording evidence to be led by the parties for arriving at a fresh decision by the Tribunal. Some how the matter could not be taken up for further evidence by the Tribunal. The fact remains that the matter is pending before the Tribunal for leading evidence.

3. At this stage, having been advised by the counsel engaged by the claimants, they sought to convert the claim petition which was filed originally under Sections 166/163A of the Act to one under Section 163A of the Act.

4. The Tribunal having relied upon the decision of this Court in Ravinder and another versus Subhash Chand and others 2007 ACJ 1365 held that such an amendment sought for by the claimants was sustainable and ultimately permitted the claimants to amend the claim petition.

5. The learned Senior counsel appearing for the New India Assurance Company Limited would submit that after 17 long years from the date of institution of the claim petition, an application for amending the claim petition has been permitted by the Tribunal. It is his further submission that the Tribunal had already rendered a verdict dismissing the claim petition preferred by the claimants. Of course, on remand the matter has been sent back to the Tribunal for recording evidence but in as much as the Tribunal had already rendered a verdict on exercise of the option by the claimants to pursue the claim petition under Section 166 of the Act, the question of permitting the claimants at this distance in time to claim Civil Revision No.6469 of 2012(O&M) 3 compensations under Section 163A of the Act does not arise for consideration. Referring to a decision of the Hon'ble Supreme Court in Deepal Girishbhai Soni and Ors. Versus United India Insurance Co. Ltd., Baroda JT 2004(4) SC 83 and the decision of this Court in Vijender Singh versus Kailash Sharma and others 2008 ACJ 1093 he would submit that once the claimants have elected their option to pursue their claim either under Section 163A or under Section 166 of the Act, they cannot be permitted to amend the claim petition later on. Therefore, it is his submission that the impugned order passed by the Tribunal is liable to set aside.

6. The provisions under Sections 163A and 166 of the Motor Vehicles Act, 1988 have been made by the legislature to render succor to the legal heirs or victims of accident. Therefore, on a technical ground, the claimants who are seeking an award on the demise of their family member or on sustaining injuries shall not be shown the doors.

7. The claimants in the present case clubbed both the provisions of law namely Section 163A as well as Section 166 of the Act while making a claim petition for passing an award on the demise of the bread winner of their family. It is found that the claimants themselves were not sure as to whether they could claim compensation under Section 163A or 166 of the Act in as much as they claimed compensation under both the provisions of law.

8. It is true that the Tribunal earlier arrived at a decision that the claimants were not entitled to compensation but the fact remains that the matter has been remanded to the Tribunal at the intervention Civil Revision No.6469 of 2012(O&M) 4 of this Court in the appeal preferred by the claimants for leading evidence. Now the matter is pending before the Tribunal for recording evidence only. Therefore, it is not as if the option exercised by the claimants had attained finality. Of course, under Section 163-B of the Act, the claimants cannot make a claim for compensation under both the aforesaid provisions of law. They have to exercise an option to choose either the provision under Section 163A or the provision under Section 166 of the Act to make a claim.

9. Of course, the Tribunal has framed an issue as to whether the accident took place on account of the rash and negligent driving of the driver of the offending vehicle but in as much as the trial is construed to be pending on remand of the matter, in my considered view, the above exercise by the claimants had not attained finality.

10. The Tribunal has rightly banked on the ratio laid down by this Court in Ravinder's case (supra) and held that during the pendency of the award proceedings before the Tribunal, the Tribunal can permit the claimants to convert the claim petition under Section 163A of the Act.

11. The Hon'ble Supreme Court in Deepal Girishbhai Soni's case (supra) has held that the claimant cannot pursue his remedies under both the provisions of Section 163A and 166 of the Act. The claimants will have to elect to go either for a proceeding under Section 166 or Section 163A of the Act but not under both the aforesaid provisions of law. But the question before this Court is whether the claimants can be permitted to alter their option when the Civil Revision No.6469 of 2012(O&M) 5 claim proceedings were pending. In my considered view, when the proceedings are going on before the Tribunal, an amendment sought for by the claimants to pursue the claim petition under the provisions of under Section 163A of the Act can very well be permitted, as otherwise much hardship would be caused to the claimants who had lost their bread winner in the family.

12. Further, the ratio laid down by this Court in Vijender Singh's case (supra) would not apply to the case on hand, in as much that was a case where the claimants sought to convert the case from Section 163A to one Section 166 of the Act. Even otherwise, I prefer to follow the decision of this Court in Ravinder's case (supra).

13. In view of the above, I find that the Tribunal has rightly permitted the claimants to pursue the claim under Section 163A of the Motor Vehicles Act.

14. I do not find any merit in the Revision. Therefore, the Revision fails and it stands dismissed. No costs. November 09, 2012 p.singh (M.JEYAPAUL) JUDGE