Bombay High Court
The New India Assurance Co. Ltd vs Smt.Vaishali Somnath Dusad And ... on 29 March, 2016
Bench: P.R. Bora
1 FA NO.267 OF 2001
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.267 of 2001
(with Civil Application No.11034 of 2014)
The New India Assurance Co.Ltd. having it's
registered Office and Head Office at 87, M.G.Marg, Fort,
Mumbai-1, and having Divisional Office at Aurangabad
and Branch office at Jalgaon.
...APPELLANT
ig (Ori.Respondent No.3 & 5)
VERSUS
1. Smt. Vaishali w/o Somnath Dusad ( Deleted)
2. Niket s/o Somnat Dusad, Age 10 years,
minor u/g of his grand mother
claimant No.5.
3. Yesh s/o Somnath Dusad ( Deleted)
4. Anilkumar s/o Balaram Dusad,
Age 58 years, Occ: Business,
r/o Ajanta, Tq.Sillod,
Dist. Aurangabad.
5. Smt.Chandrakalabai w/o Anilkumar Dusad,
Age 50 years, Occ. Household,
r/o as above.
6. Sk.Mushtaq s/o Sk.Ahemad,
Age 30 years, Occ. Driver,
r/o Bharadi, Dist.Aurangabad.
(7. Lalit Shobhraj Jain,
Age 40 years, Occ. Business,
r/o "Pitruchaya" building,
Nehru Chowk, Aurangabad.
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2 FA NO.267 OF 2001
8. Mukesh s/o Anilkumar Dusad, Age Major, Occ.
Business, r/o Ajanta, Tq. Sillod, District
Aurangabad. )
(Appeal is dismissed as against Respondent nos. 7 and
8, as per Court's order dated 23.02.2016 in CA No.
11034/2014)
...RESPONDENTS
(Ori.Claimants)
Mr. D.S.Kulkarni, Adv., h/f Mr. S.L.Kulkarni, Adv., for the
appellant.
Mr. R.V.Gore, Adv./, for respondent no.2.
ig ...
CORAM: P.R.BORA, J.
DATE : March 29th, 2016.
***
ORAL JUDGMENT:
1. The appellant has filed the present appeal taking
exception to the judgment and award passed by the Motor
Accident Claims Tribunal, Aurangabad, in MACP No.412/1996
on 11.4.2001.
2. The award passed by the Tribunal has been
challenged mainly on the ground that the petition under Section
163A of the Motor Vehicles Act ( hereinafter referred to as
"M.V. Act"), filed by the respondents / claimants itself was not
maintainable in view of the fact that income of the deceased as
stated in the said petition was Rs.67,100/-.
3. The original claimants have filed the aforesaid Civil
3 FA NO.267 OF 2001
Application with a prayer that the claimants be permitted to
convert the original claim petition filed under the provisions of
Section 163A of the M.V. Act into a petition under Section 166
of the said Act.
4. It is not in dispute that the petition was filed under
Section 163A of the M.V. Act. The income of the deceased is
admittedly stated to be Rs.67,100/- per annum in the said
petition. It is thus evident that the petition filed under Section
163A was apparently not maintainable. Proceedings under
Section 163A being a social security provision providing for a
distinct scheme only those whose annual income is upto
Rs.40,000/- can take benefit thereof; all other claims are
required to be determined in terms of Chapter XII of the Act.
5. Realizing the aforesaid aspect, the original
claimants seems have preferred the aforesaid Civil Application
in the present appeal seeking permission to convert the original
claim petition into a petition under Section 166 of the said Act.
Learned Counsel appearing for the respondents / claimants
submitted that such course is permissible and to buttress his
said contention has relied upon the judgment of this Court in
the case of New India Assurance Co.Ltd. Vs. Ashabai
Kalyan Kothi and ors. ( 2008(6) Bom.C.R. 89).
6. Learned Counsel for the appellant Insurance
Company has fairly submitted that in view of the law laid down
in the judgment relied upon by the learned Counsel for
claimants, this Court may pass appropriate orders. Learned
Counsel has, however, further submitted that in case the
applicants are allowed to convert the claim petition under
4 FA NO.267 OF 2001
Section 166 of the said Act, the Insurance Company shall not
be saddled with the burden of interest of the intervening period
i.e. from the date of original award till the date of conversion of
the petition under Section 166 of the M.V. Act.
7. In the case of New India Assurance Co.Ltd. Vs.
Ashabai Kalyan Kothi (cited supra), the appellant Insurance
Company had challenged the award passed by the Motor
Accident Claims Tribunal under Section 163A of the M.V. Act on
the ground that the petition itself was not maintainable under
Section 163A of the said Act for the reason that the income of
the deceased, as stated in the said petition, was admittedly
more than Rs.40,000/- per annum. During the course of
hearing of the said appeal, a prayer was made on behalf of the
original claimants that in the event the High Court takes a view
that the claim petition under Section 163A of the M.V. Act was
not maintainable, the claimants may be allowed to convert the
claim petition into a petition under Section 166 of the said Act.
The prayer so made was accepted by the High Court and the
claimants were allowed to convert the claim petition filed by
them under Section 163 of the M.V. Act into a claim petition
under Section 166 of the said Act. While accepting the
request of the Original Claimant, the High Court has made
following observations in paragraph No.15 of the judgment,
which reads thus:
"15. The Tribunal as well as this Court always has
a power to allow the conversion of a claim petition under
section 163-A into a claim petition under section 166 of
the said Act. The procedure is always a handmaid of
justice. We are dealing with a beneficial legislation which
provides for payment of compensation to the legal
representatives of the victims of an accident involving a
5 FA NO.267 OF 2001
motor vehicle. The power of the Tribunal or this Court to
allow conversion of the claim petition is discretionary.
While exercising the discretion of allowing conversion, no
doubt, the conduct of the claimants will be relevant. In a
given cases, such as the case before the Division Bench in
the case of Rukhminibai (supra), the Court can refuse to
exercise the discretion. In the present case, the conduct
of the claimants is not such that the discretion should not
be exercised in their favour. The claim petition was filed
through an Advocate after setting out a specific case that
income of the deceased was Rs. 4000/-p.m. The said
stand was reiterated by the first respondent in the
Affidavit in lieu of examination-in-chief. It cannot be said
that the action of invoking section 163-A was deliberate.
The claimants have obviously acted as per legal advice. In
my view this is a case where the claim petition under
section 163-A should be allowed to be converted into a
petition under section 166 of the said Act."
8. In view of the observations as aforesaid made in the
judgment cited supra, and the conclusion arrived at, I do not
see any reason for not adopting the same course even in the
instant matter. I am, therefore, inclined to allow the Civil
Application (No.11034/2014) filed by the Original Claimants.
It has to be stated that the M.A.C.P.No.412 of 1996 filed by the
original claimants under Section 163A of the M.V. Act was not
maintainable. The impugned award, therefore, cannot be
sustained.
9. In so far as the contentions raised by the learned
Counsel appearing for the appellant Insurance Company as
regards to the award of interest in the event the petition is
allowed to be converted into a petition under Section 166 of the
Act is concerned, the Tribunal will certainly note that the
original claimants had filed a petition which was not
maintainable and subsequently, the said petition was allowed to
be converted into a petition under Section 166 of the said Act.
6 FA NO.267 OF 2001
While passing the final award, the Tribunal is bound to consider
this factual aspect while exercising discretionary powers under
Section 171 of the Act relating to the award of interest.
10. It is brought to my notice that the appellant
Insurance Company has deposited the entire amount of the
award together with interest accrued thereon; more
particularly, the amount of Rs.9,24,565/- in this Court. It is
further brought to my notice that out of the said amount the
original claimants were permitted by this Court to withdraw the
amount of Rs.1,25,000/- and accordingly the said amount has
been withdrawn by the original claimants / applicants.
11. In the above circumstances, the following order is
passed:
ORDER
a) The impugned judgment and award dated
11/4/2001 passed in M.A.C.P.No.412 of 1996 by the Motor
Accident Claims Tribunal, Aurangabad, is quashed and set aside
and the M.A.C.P. No.412/1996 is restored.
b) On an application being made by the claimants, the
learned Member of the Tribunal will allow the claimants to make
necessary amendment for converting the claim petition under
Section 163A into a petition under Section 166 of the Motor
Vehicles Act.
c) It would be open for the respondents in the claim
petition to file written statement or supplementary written
statement by adopting the earlier written statement which is
already there on record.
7 FA NO.267 OF 2001
d) The claim petition shall be decided expeditiously. All
the contentions of the parties, including various contentions
raised by the appellant in this appeal, are kept open.
e) The appeal and the Civil Application are allowed in
above terms with no order as to costs.
f) Out of the amount deposited by the Insurance
Company in this Court, the Original Claimants have withdrawn
the amount of Rs.1,25,000/-. It will be open for the appellant
Insurance Company to withdraw the balance amount.
g) The amount of Rs.1,25,000/- withdrawn by the
original claimants shall be adjusted while making final award in
the Motor Accident Claim Petition.
h) Pending Civil Applications, if any, stand disposed of.
i) The parties to appear before the Motor Accident
Claims Tribunal, Aurangabad, on 11th April, 2016.
j) R & P received from the Motor Accident Claims
Tribunal, Aurangabad, may be returned to the Tribunal
forthwith.
(P.R.BORA)
JUDGE
...
AGP/267-2001fa
