Govindbhai Chhaganbhai Bhil ... vs Dilawarkhan Sahebkhan Baloch
2023 Latest Caselaw 6317 Guj

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      C/FA/845/2023                           ORDER DATED: 29/08/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/FIRST APPEAL NO. 845 of 2023
                           With
      CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2023
             In R/FIRST APPEAL NO. 845 of 2023

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 GOVINDBHAI CHHAGANBHAI BHIL (RANA) FATHER OF
                         DECD
                         Versus
          DILAWARKHAN SAHEBKHAN BALOCH
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Appearance:
KAASH K THAKKAR(7332) for the Appellant(s) No. 1,2,3
MR KK THAKKAR(2834) for the Appellant(s) No. 1,2,3
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
NOTICE SERVED BY DS for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                         Date : 29/08/2023

                          ORAL ORDER

1. Heard, learned advocate Mr. Kaash K. Thakkar for the

applicants - appellants and learned advocate Ms. Kirti Pathak for the

respondent No. 2.

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2. The learned advocate for the applicants - appellants has relied

upon decision of Division Bench of this Court in National

Insurance Co. Ltd. v. Mukeshbhai Bhalchandra Jani, Decd.

Through heirs Ranjan, 2004 (1) GLH 246, the decision of Larger

Bench of Karnataka High Court in Guruanna Vadi v. General

Manager, KSRTC, 2001 ACJ 1528, Divisional Manager, U nited

India Insurance Company Ltd. v. Sunita & Ors., 2019 ACJ 109

and Parulben Nareshbhai Rana v. Punjabhai Parsottamdas Rana

(Died) & Ors. rendered in Special Civil Application no. 3612 of

2019 to submit that conversion of claim petition under the Motor

Vehicles Act, 1988 (MV Act) is permissible even at the appellate

stage.

3. The learned advocate for the applicants - appellants submitted

that by an application, exh. 7, the applicants had moved the Tribunal

for converting the claim compensation petition under Section 166 of

the MV Act and notice was also issued to the respondent Nos. 1 and

2, however, without any instructions, the learned advocate of the

claimant had not pressed the said application and therefore, by an

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order dated 24.10.2018, the said application, exh. 7 stood disposed

of as withdrawn. Mr. Thakkar for the applicants - appellants

submitted that it is a valuable right of the applicants - appellants,

which came to be jeopardized. It is submitted that once a fact has

been brought to the notice of the Tribunal that the applicants -

appellants want to proceed under Section 166 of the MV Act on the

ground that his income should not be considered restricted to that

being as approved under the Schedule as attached to Section 163A of

the MV Act and when income factor has been agitated before the

concerned Tribunal, then, it was incumbent upon the Tribunal to

consider the application since the Tribunal becomes duty bound to

appreciate the said aspect.

3.1 Mr. Thakkar for the applicants - appellants further states that

the applicants have not withdrawn the amount of the compensation

deposited by the insurance company and that very fact itself proves

that the applicants still want to agitate the case on the basis of

application, exh. 7 moved by them.

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4. Vehemently countering the arguments advanced by the learned

advocate for the applicants, learned advocate Ms. Pathak for the

insurance company submitted that since the income factor was

within the knowledge of the applicant from the very inception, claim

petition under Section 166 of the MV Act ought to have been moved

and after passage of time, application, exh. 7 was moved to convert

the petition under Section 166 of the MV Act and when the

applicants had the knowledge of the application being not pressed by

their advocate, the claimants cannot, now, turn around to contend

that the endorsement on the application, exh. 7 was not under their

instructions.

5. Exh. 7 application was moved with a specific contention that

his income be considered as Rs.60,000/- in stead of Rs.40,000/- and

the claim petition be converted from Section 163A into Section 166

of the MV Act and accordingly, an amendment was sought for in

colum No. 24 to consider the liability as Rs.12 lakh.

5.1 In the case of Mukeshbhai Bhalchandra Jani, Decd.

Through heirs Ranjan (supra), it has been noted that a claimant

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would have three remedies available: i) under Section 166, ii) under

Section 140 and iii) under Section 163A of the MV Act and the

claimant can exercise any of the said remedies and the Tribunal is

duty bound to consider the application. It was the case where

application was given after the award was passed by the Tribunal, to

exercise the option to consider the case under Section 163A of the

MV Act. It has been observed as under:-

"7. In view of the above decisions, it is clear beyond any manner of doubt that the claimant who is having three statutory remedies available, (i) under Section 166(ii) under Section 140, and (iii) under Section163-A of the Act can exercise any of the said remedies. The Tribunal is duty bound to consider the application. As far as the case on hand is concerned, the claimants are justified in withdrawing the original application filed under Section 166 of the Act and praying for the award under Section 163-A of the Act. In taking this view, we are also supported by the decisions of the Full Bench of the Karnataka High Court rendered in the case of Guruanna Vadi and anr. v. The General Manager, K.S.R.T.C., and anr. reported in AIR 2001 Karnataka 275. It is held in the said decision that the claimant can move the Court for amendment of his claim petition filed under Section 166 to that of a petition under Section 163-A at any stage of the proceedings and it would be for the concerned Court to pass an order on that application in accordance with law, provided he satisfies other conditions such as the income factor etc. and the only bar provided for exercising an option in the matter of filing a claim petition for compensation is to be found in Section 163-B which states, 'where a person is entitled to claim compensation under Section 140 and Section 163-A, he shall file the claim under either of the said sections and not under both."

5.2 In case of Divisional Manager, United India Insurance Co.

Ltd. v. Sunita and Others, 2019 ACJ 109, it is held by the

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Karnataka High Court that there is no prohibition under Motor

Vehicles Act for conversion of a claim application from one under

Section 163A to Section 166. The claimants during pendency of

appeal filed an application under Order 6 Rule 17 of CPC seeking

permission to convert their claim filed under Section 163A to

Section 166. It was noted that the Tribunal and High Court have

discretionary power to allow conversion of the claim application

taking into consideration the facts of the case and conduct of the

claimants. In Sunita and Others (supra), in Paragraphs 8 and 12, the

scope of Sections 163A and 166 of the MV Act has been explained,

which read as under:-

"8. A reading of section 163-A along with Second Schedule also makes it very clear that it is only in those cases where the income of the injured/victim would be up to Rs.40,000 per annum can a claim petition be maintained under Section 163-A of the MV Act. This makes it very clear that a claim petition under Section 163-A of the MV Act is not maintainable where the income of the injured/victim is/was more than Rs.40,000 per annum. However, to overcome this, the claimants, who are respondents, have filed IA No. 1 of 2017 under Order 6, rule 17 read with section 151 of Civil Procedure Code seeking permission to amend the provision of the claim petition from section 163-A of the MV Act to section

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166 of the same Act. In the affidavit accompanying the application, the applicants - claimants have stated that they have claimed yearly income of the deceased at more than Rs.40,000. Though the provision of law mentioned in the claim petition was under Section 163-A of the MV Act, but they conducted the case as if they have filed petition under Section 166 of the MV Act. The Tribunal also appreciated the materials and evidence in this regard.

12. Regarding the scope of section 163-A and section 166 of the MV Act, as already observed above, it is only in those categories of cases where the income of the injured-claimant/victim is not more than Rs.40,000 per annum can a claim petition be filed under Section 163-A of the MV Act, if they so feel like. There is no bar for them to file the petition under Section 166 of the MV Act instead of section 163-A of the same Act. However, if the claim petition is filed under Section 163-A of the MV Act, the claimants need not take the risk of proving the alleged negligence on the part of the rider/driver of the alleged offending vehicle which has caused the accident, whereas section 166 of the MV Act requires the claimants to prove such negligence on the part of the rider/driver of the alleged offending vehicle."

5.3 In the case of Guruanna Vadi (supra), a question was raised

by the Larger Bench as;

"6. As to whether a claimant, during the pendency of the proceedings at the original or the appellate stage, can amend his claim petition under Section 166 as a petition under Section 163-A of the Act"

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It was answered in Paragraph 37 as under:-

"The only bar provided for exercising an option in the matter of filing a claim petition for compensation is to be found in S. 163-B which states, where a person is entitled to claim compensation under Sec. 140 and Sec. 163-A, he shall file the claim under either of the said sections and not under both' There is no prohibition in any other provision of the Act from switching over the claim made under Sections 166 to 163-A provided the accident took place on 14-10-1994 or thereafter because S. 163-A came on the statute book only with effect from 14-10-1994, subject of course, to the claimants satisfying other requirements such as the outer income limit mentioned in the Second Schedule. Sec. 163 is a beneficial legislation and provides for payment of compensation based on structured formula without requiring pleading or establishing that the death or permanent disability in respect of which the claim has been made was due to any wrongful act or negligence or default of the owner of the vehicle or vehicles concerned or any other person. Such a beneficial legislation has to be given a liberal interpretation. Therefore we answer this question in the affirmative by holding that a claimant can move the Court for amendment of his claim petition filed under Sec. 166 to that of a petition under Sec. 163-A at any stage of the proceedings and it would be for the concerned Court to pass an order on that application in accordance with law."

5.4 Yet in another decision, the coordinate Bench of this Court, in

Special Civil Application No. 3612 of 2019, by an order dated

19.06.2019, while upholding conversion, of the application from

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Section 163A to Section 166 of the MV Act, even allowed

amendment of income from that of Rs.40,000/- per annum to

Rs.7,000/- per month.

5.5 In Mukeshbhai Bhalchandra Jani (supra), the Division

Bench of this Court has held in affirmative observing that it is

permissible to exercise the option out of two proceedings under

Sections 163-A and 166 of the MV Act to convert the claim petition

under any of the section either during pendency of the proceedings

before the Tribunal or at an appellate stage. The claimant can move

the Court for amendment of his claim petition at any stage of the

proceedings and it would be for the concerned Court to pass order on

that application in accordance with law on being satisfied about the

other conditions such as income factor etc.

5.6 In the instant case, the application, exh. 7 was moved by the

claimants for converting the application from no fault liability under

Section 163A to the fault liability under Section 166 of the MV Act.

It is the Tribunal, which was brought to the notice of the income and

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since the claim compensation deposited by the insurance company

has not been withdrawn by the applicants, it would be in the wider

interest of justice that the prayer to consider the application under

Section 166 of the MV Act is allowed.

6. In the result, the civil application succeeds and is accordingly,

allowed. The order dated 24.01.2018 passed below application, exh.

7 is quashed and set aside and the applicants are permitted to convert

the claim petition being Motor Accident Claim Petition No. 93 of

2018 (Old No. 157 of 2011) into one under Section 166 of the MV

Act.

6.1 Consequently, main First Appeal No. 845 of 2023 is partly

allowed. The impugned judgment and award dated 17.07.2019,

passed by the learned Motor Accidents Claim Tribunal, (Auxiliary-

2), Patan at Radhanpur, in Motor Accident Claim Petition No. 93 of

2018 (Old No. 157 of 2011) is set aside and the matter is remitted

back to the Tribunal concerned, to decide the same afresh treating

the same as under Section 166 of the MV Act, by giving due

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opportunity to both the sides, in accordance with law, as

expeditiously as possible, preferably within six months.

[ Gita Gopi, J. ] Maulik /148