Gujarat High Court
Karimaben Sulemman Lohar Wd/O Late ... vs Alimamad Usman Kureshi on 14 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14139 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1596 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13822 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
NO
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KARIMABEN SULEMMAN LOHAR WD/O LATE SULEMMAN
JUSAB LOHAR & ORS.
Versus
ALIMAMAD USMAN KURESHI & ORS.
=============================================
Appearance:
MS.YOGINI H UPADHYAY(6695) for the Petitioner(s) No. 1,2,3,4
RULE SERVED for the Respondent(s) No. 3
RULE UNSERVED for the Respondent(s) No. 1,2
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CORAM HONOURABLE MS. JUSTICE NISHA M. THAKORE
:
Date : 14/11/2025
COMMON ORAL JUDGMENT
1. The present petitions raising common issues of law, are
heard together and decided by this common judgment. The
matters were heard finally and were directed to notify for
orders on 4.9.2025.
2. Learned advocate Ms. Yogini Upadhyay appearing on
behalf of the petitioners in the captioned matters has
appraised the Court about the issue involved in Special Civil
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Application Nos. 1596 of 2022 and 14139 of 2022. Mr. H. B.
Champavat, learned advocate has appeared on behalf of
respondent no. 1 being the owner of the vehicle involved, Mr.
Dakshesh Mehta, learned advocate has entered appearance
on behalf of respondent no.2 Insurance Company, whereas,
Mr. Mandipsingh Saluja, learned advocate has entered
appearance on behalf of respondent No.3 insurance company.
Learned advocate Mr. Saluja has submitted written
arguments on behalf of respondent No.2 Insurance Company.
The same was permitted to be taken upon record. In order to
appreciate the controversy involved, appropriate would be to
record the distinct facts of the case.
Special Civil Application No.1596 of 2022:
3. The petitioners are the original claimants who have invoked
supervisory jurisdiction of this Court under Articles 226 and
227 of the Constitution of India praying for issuance of writ of
mandamus or any other appropriate writ in the nature of
mandamus seeking quashing and setting aside of the order
dated 4th May 2013 passed by the Motor Accident Claims
Tribunal, Kutch at Bhuj below Exh.33 filed in MACP No. 726
of 1997. The further directions are sought for to decide
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application preferred under Section 166 of the Motor Vehicles
Act, 1988 in accordance with law.
3.1. The brief facts which can be gathered from the
averments made in the claim petition is that the petitioners
have approached the Motor Accident Claim Tribunal by filing
claim petition under Section 166 of the Act of 1988 praying
for an amount of compensation of Rs. 5 lakhs against the
respondents on account of the death of Shri Veljibbhai Arjun
Prajapati- the husband of the petitioner No.1, who
unfortunately succumbed to the injuries caused in motor
vehicle accident. The said claim petition was registered as
MACP No. 7296 of 1997. In the aforesaid claim proceedings,
an application was moved under Section 163 A of the Act of
1988 which was submitted at Exhibit 6, praying for interim
compensation on the basis of no fault liability, thereby seeking
compensation of an amount of Rs.2,49,500/- as interim
compensation. The Tribunal vide order dated 30 th September,
1999, had granted interim compensation to the tune of
Rs.2,09,500/- with interest at the rate of 12% per annum from
the date of filing of such application till its realisation. The
respondent No.3- Insurance Company had objected to
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aforesaid application by submitting their reply at Exh.33. It
was specifically contended that the claimants are precluded
from seeking compensation under section 166 of the Act,
1988. The Insurance Company had preferred application
inter- alia contending that since the claimants have already
been awarded compensation under Section 163 -A of the Act
of 1988, they are precluded from seeking further
compensation under Section 166 of the Act.
3.2 The Tribunal upon hearing the respective parties vide
order dated 4th May, 2013, was pleased to allow such
application thereby rejecting the claim petition of the present
petitioners- original claimants under Section 166 of the Act by
holding it as not maintainable, in view of the decision of
Honourable Supreme Court in the case of Oriental
Insurance Company Limited versus Dhanbai Kanji
Ghadhvi reported in 2011(2) GLR 1534. Thus, the Tribunal
was of the view that since the order is passed under Section
163 A of the Act which is final in nature, the claimants are
barred from availing further compensation under Section 166
of the Act, 1988. Hence, the present petition at the instance of
the original claimants.
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Special Civil Application No. 13822 of 2022.
4. The petitioners are the original claimants who have
invoked supervisory jurisdiction of this Court under Article
226 read with Article 227 of the Constitution of India, praying
for issuance of writ of mandamus or any other appropriate
writ or direction against the Tribunal to decide their
application under Section 166 of the Act as per the orders
passed by this Court. Alternatively, the petitioners have
prayed for quashing and setting aside the order dated 4 th May
2013 passed by the Motor Accident Claim Tribunal (Main),
Kutch at Bhuj below Exhibit 55 in MACP No. 421 of 1997.
4.1. The brief facts of the case as can be gathered from the
averments made in the petition are that the petitioners have
approached Tribunal by preparing an application under
Section 166 of the Motor Vehicle Act, 1988 before the Motor
Accident Claim Tribunal, Kutch at Bhuj, which was registered
as MACP No. 421 of 1997 against the present respondents,
praying for compensation of an amount of Rs. 25 lakhs
towards the death of Shri Shamji Mithu Matang, who had
unfortunately succumbed to the injuries caused in the motor
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vehicle accident. In the aforesaid proceedings, the applicants
have also preferred a separate application under Section 163A
of the Act of 1988 at Exhibit 6, praying for interim
compensation on no-fault liability basis for an amount of
Rs.20,49,500/-, by way of interim compensation. The tribunal
vide order dated 29th April, 1999, had awarded interim
compensation of an amount of Rs.4,61,500/- together with
interest at the rate of 15% per annum from the date of filing
of such application till its realisation.
4.2 The Tribunal at that stage had clarified that such
application under Section 163 A of the Act is an alternative
remedy to the remedy contained under Section 140 of the Act.
The Tribunal further observed in para- 6 as under :
"6. prima facie at this stage it would be just and
reasonable, if the annual income of the deceased is
fixed to be Rs.40,000/-. As stated above at the time of
evidence of the applicants, the applicants shall be at
liberty to prove by cogent evidence that the deceased
was earning more than the said amount. However,
for the purpose of deciding the interim
compensation, it would be just and reasonable, if the
annual income of the deceased is fixed at
Rs.40,000/".
4.3. Being aggrieved and dissatisfied with the aforesaid order
passed below Exhibit 6, the respondent no.2- Insurance
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Company had preferred appeal under section 173 of the Act of
1988 , before this Court, which was registered as First Appeal
No. 4532 of 1999. The Hon'ble Division Bench upon
appreciation of the submissions made by learned advocates
for the respective parties, vide order dated 20 th August, 1999
has partly allowed the said appeal on the limited issue of
interest only whereby rate of interest was modified from 15%
to 12%. In absence of any appeal being filed by the
respondent no.2 Insurance Company, the said order has
attained finality. Thereafter, after lapse of 12 years, the
respondent no.2- insurance company had preferred an
application at Exhibit 55, inter-alia contending that the
applicants having availed compensation under Section 163 A
of the Act of 1988, in view of the decision of Honourable
Supreme Court in the case reported in 2004 ACJ 934 (SC)
and 2001 ACJ 827 (SC), the claim petition under Section 166
of the Act of 1988, is required to be dismissed. The Tribunal
upon hearing the learned advocates appearing for the
respective parties and applying the aforesaid principles, vide
order dated 4th May, 2013 has allowed such application at
Exhibit 55 of the respondent no.2- insurance company and
thereby rejecting the claim petition preferred by the present
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petitioners original claimants under Section 166 of the Act of
1988. Hence, the present petition at the instance of the
original claimants- petitioners hearing.
Special Civil Application No.14139 of 2022
5. The present petition is filed at the instance of the
original claimants invoking supervisory writ jurisdiction of
this Hon'ble Court under Article 226 read with Article 227 of
the Constitution of India praying for issuance of writ of
mandamus or any other appropriate writ or direction to the
Tribunal to decide their application preferred under Section
166 of the Motor Vehicles Act, 1988. Alternatively, the
directions sought to quash and set aside the order dated 4th
May, 2013, passed by the Motor Accident Claim Tribunal,
Kutch at Bhuj below Exhibit 50 in MACP No. 146 of 1998.
5.1. The brief facts leading to the filing of present writ
petition as can be gathered from the averments made in the
claim petition are that the petitioners have approached Motor
Accident Claim Tribunal, Kutch at Bhuj by preferring claim
petition under Section 166 of the Motor Vehicle Act, 1988,
which was registered as MACP No. 146 of 1998. The
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petitioners have prayed for compensation of an amount of
Rs.7 lakhs with interest and proportionate cost from the
present respondents- opponents therein, towards the untimely
death of Sulemman Jusab Lohar (husband of the petitioner
no.1) who had succumbed to the injuries caused in the motor
vehicle accident. The petitioners has also preferred separate
application under Section 163 A of the Act of 1988 at Exhibit
6, praying for interim compensation on no-fault liability basis
for an amount of Rs.2,89,500/-. The Tribunal upon
appreciation of the submissions made by learned advocates
appearing for the respective parties, vide order dated 30 th
November, 1999, had awarded interim compensation of an
amount of Rs.2,33,500/- with interest at the rate of 12% per
annum from the date of filing of such application till its
realisation. The Tribunal had clarified that the right of the
petitioners is kept open to prove the age and income of the
deceased while deciding petition under Section 166 of the Act.
The Court also observed that the age and income determined
at present shall not be considered while deciding petition
under Section 166 of the Act of 1988. The respondent No. 3-
Insurance Company being aggrieved and dissatisfied with the
aforesaid order had approached in appeal under Section 173
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of the Act of 1988 before this Court, which was registered as
First Appeal No. 162 of 2000. The said appeal was dismissed
by the Hon'ble Division Bench of this Court vide order dated
29th March 2000. The Hon'ble Division Bench while passing
the aforesaid order has observed that the award passed under
Section 163 A, although final or ad-hoc under structure
formula assumes the characteristics of interim award since it
has been passed below Exhibit 6 in the main claim petition
filed under Section 166 of the Act which is yet to be heard and
decided finally. It was therefore observed that the said award
is subject to final adjudication and final award which may
ultimately be passed in the main claim petition. The
appropriate directions were also issued to deposit 70% of the
awarded amount with interest and cost within a period of 4
weeks thereafter and 30% of such amount was directed to be
released. The 70% of the amount was directed to be invested
in the fixed deposit scheme of any nationalized bank and the
interest which was to accrue on such amount in the fixed
deposit was permitted to be withdrawn by the petitioner's-
original claimants. The Court had also taken note of the
judgement of the Coordinate Bench passed in the case of R.
V. Chudasma versus H. V. Kodala reported in 1999 (1)
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GLH 278 against which it was reported by counsel for the
Appellant -Insurance Company that a Special Leave Petition
being SLP Civil No.8742 of 1999, pending consideration. The
Hon'ble Division Bench was of the view that pendency of the
aforesaid appeal would have no bearing or any impact on the
said order as the Tribunal is yet to pass any final order under
Section 166 of the Act if required with necessary
modifications. The Hon'ble Division Bench had therefore
dismissed the appeal at the admission stage.
5.2. Pending the claim proceedings before the Tribunal, the
petitioner's -original claimants have preferred an application
at Exhibit 39 on 22.02.2010, thereby seeking permission of
the Tribunal to opt to proceed with their application preferred
under Section 166 of the Act. The applicants have also
undertaken to adjust the amount disbursed and invested
pursuant to the award passed under Section 163 A of the Act.
The reliance was placed on various orders passed by this
Court in the First Appeal as well as writ petition and the
decision of Hon'ble Supreme Court in the case of Deepal
Girishbhai Soni and Others vs. United India Insurance
Company Limited reported in (2004) 5 SCC 385. The
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Tribunal vide order dated 17th July 2010 by referring to the
decision of this Court in the case of Dhanbai Kanji Ghadhvi
(Supra) has taken a view that the amount awarded on interim
application preferred under section 163 A of the Act can be
adjusted against the award amount which may be finally
decided while considering the main claim petition under
section 166 of the Act, 1988 and has thereby permitted the
original claimants to proceed with the claim petition preferred
under Section 166 of the Act of 1988. Without challenging the
aforesaid order, subsequently on 12.01.2012, the respondent
No.3 Insurance Company had preferred counter application at
Exhibit 50, praying for appropriate directions, essentially
praying for dismissal of the main claim proceedings pending
consideration under section 166 of the Act of 1988. The
aforesaid application submitted by the original claimants was
objected by the respondent no.3- Insurance Company by
submitting their reply at Exhibit No.50, thereby seeking
dismissal of the main claim petition under Section 166 of the
Act of 1988. The reliance was placed on the decision of
Hon'ble Supreme Court in the case of Dhanbai Kanji Gadhvi
(supra) as well as the principles laid down in the case of
Deepal Girishbhai Soni (Supra). The Tribunal upon hearing
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the learned advocates appearing for the respective parties
and the principles laid down by the Hon'ble Supreme Court in
the aforesaid decisions has relied upon vide order dated 4 th
May, 2013, and was pleased to allow such application
preferred by the respondent insurance company at Exhibit 50.
The Tribunal by aforesaid order has held the claim petition
preferred under Section 166 of the Act being not
maintainable. Hence, the present petition at the instance of
the original claimants- petitioners herein challenging the
aforesaid order dated 4th May 2013 passed below Exhibit 50
in Motor Accident Claim Petition No. 146 of 1998 by Motor
Accidents Claim Tribunal (Main), Kutch at Bhuj.
7. Ms. Upadhyay, learned advocate for the petitioners-
original claimants has raised question of law by relying upon
the unreported judgment of the learned Single judge of this
Court in the case of Pushpalattaben Navinchandra vs.
Gujarat State Road Transport Corporation, rendered in
Special Civil Application No.3313 of 2016 dated
24.09.2028 as well as the judgment of the Coordinate Bench
of this Court in the case of Appu Kirankumar Kshatriya vs.
Anirudhsinh Bharatsinh Sarvaiya rendered in Special
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Civil Application No.14657 of 2019 dated 11.07.2022.
Learned advocate have drawn my attention to the facts of the
aforementioned case as well as prayer sought for. The
attention of this Court was invited to the reasons assigned by
the learned Single Judge in the case of Pushpalattaben
Navinchandra (supra), wherein noticing the controversy
involved, the two questions which arose for consideration as
framed by the learned Single Judge, are reproduced herein
under:
"I. Whether prior to the judgment dated 18.3.2004
delivered by this Hon'ble Court in Deepal
Girishbhai Soni Vs United India Insurance Co.
reported in (2004)5 SCC 385, an application for
compensation under Section 163A of the Act was
being considered as an interim application
claiming interim compensation on "No Fault
Liability" basis only, and hence did not preclude
grant of final compensation under Section 166 of
the Act on Fault Liability basis? And
II. Whether the aforestated judgment of Deepal
Girishbhai Soni Vs. United India has retrospective
applicability or prospective applicability? The
effect being that if it operates prospectively, then
all applications under Section 163A of the Act,
decided prior to the aforestated judgment would
continue to operate as interim applications and
would not preclude the Courts from deciding
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Applications under Section 166 of the Act, giving
credit of the amount paid U/s.163A"
7.1. Referring to the aforesaid questions of law, learned
advocate has submitted that in the present matters this court
is required to examine as to whether the Tribunal has
committed any error in dismissing the claim petition without
appreciating the legal position that prior to the judgement
dated 18th March, 2004, delivered by the Hon'ble Supreme
Court in the case of Deepal Girishbhai Soni (Supra), the
general practise which prevailed was an application for
compensation filed under section 163A was considered as an
interim application, claiming interim compensation on the
basis of no fault liability only and the claimants being not
precluded from proceeding with the main claim petition
preferred under Section 166 of the Act of 1988. Thus, the
learned advocate has raised the question of law with regard to
applicability of the judgement of the Hon'ble Supreme Court
in the case of Deepal Girishbhai Soni (Supra),
retrospectively or prospectively in the facts of the case? She
had further submitted that the aforesaid issue is no more res-
integra in view of the decision of learned Single Judge passed
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in case of Pushpalattaben Navinchandra (supra). Learned
advocate has heavily relied upon the aforesaid legal issue
being answered by the learned Single Judge of this Court and
has therefore urged this Court to quash and set aside the
order under challenge and to pass consequential order of
restoring the main claim proceedings under Section 166 of
the Act before the Tribunal to its original file and further issue
appropriate directions to expedite the claim proceedings to be
decided within stipulated time. Learned advocate had further
submitted that the aforesaid decision of learned Single Judge
in case of Pushpalattaben Navinchandra (supra) has not
been assailed before the Hon'ble Supreme Court and has
attained finality. She has further submitted that the aforesaid
decision has been subsequently followed by the Coordinate
Bench of this Court in the case of Appu Kirankumar
Kshatriya (supra). The reliance was also placed on
unreported decision of the Hon'ble Division Bench of this
Court in the case of New India Assurance Company
Limited versus Bhaktiben Bhaveshkumar Thacker wd/o
Bhaveshkumar J Thacker and others rendered in First
Appeal No.2132 of 2004 and allied matters dated dated 29th
April, 2019. The attention of this Court was invited to the
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contention raised by advocates for the Insurance Company. It
was submitted before the Hon'ble Division Bench that the
Tribunal had wrongly allowed the claim petitions as the
original claimants have already been awarded compensation
under Section 163A of the Act, 1988. The aforesaid contention
of the learned counsel for the Insurance Company was dealt
with by the Hon'ble Division Bench by mainly relying upon the
earlier judgement of the Division Bench of this Court rendered
in First Appeal No.2379 of 2000 dated 23 rd January, 2002.
The Court had referred to the decision of Honourable
Supreme Court in the case Hansraj Kodala (supra). The
contention of the claim petition to be dismissed in view of the
fact that the claimants are having received the compensation
under Section 163 A of the Act cannot be accepted since the
main claim petition under section 166 of the Act was pending
consideration and the application preferred under section
163A of the Act was treated as an application for interim
compensation and the amount was directed to be adjusted
against the final award to be drawn by the Tribunal. In case if
the undertaking was not filed by the claimants, it was left
open to the appellant Insurance Company to apply to the
tribunal for restitution of the amount which was already
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disbursed in favour of the claimants.
8. Per contra, Mr. Saluja, learned advocate appearing for
the respondent- Insurance Company in one of the petition has
vehemently objected to the aforesaid submissions made by
learned advocate for the petitioners. In his written arguments
submitted in Special Civil Application No.1382 of 2022,
learned advocate had submitted that the writ petition, devoid
of any merits, is required to be dismissed. Learned advocate
had fairly admitted to the interim compensation being
awarded under Section 163 A of the Act by the Tribunal and
the same being modified by the Hon'ble Division Bench of this
Court reducing the rate of interest from 15% to 12% per
annum on the awarded interim compensation and thus the
interim award having attained finality in absence of any
challenge before the higher forum. However, has supported
the impugned order passed by the Tribunal by placing heavy
reliance upon the relevant observations of the Honourable
Supreme Court in the case of Deepal Girishbhai Soni
(supra) and Dhanbai Kanji Gadhvi (supra). Learned
advocate had submitted that admittedly the award has been
passed under Section 163 A of the Act. The accident occurred
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on 8th of November, 1996, i.e. after the insertion of section
163 A and 163 B by the Motor Vehicles Amendment Act 1994,
which was enacted in the year 1994. The attention of this
Court was invited to the object of inserting section 163 A of
the Act by the legislation was to provide speedy and final
relief to the victims / legal heirs based on a structure formula,
without requiring proof of fault or negligence. He has
therefore submitted that the said provision is a special, self-
contained code which excludes the rest of the provisions of
the Act of 1988. The attention of this Court was also invited to
section 163 B of the Act,1988, which specifically provides the
claimants to opt for claim of compensation under Section 140
of the Act or under section 163 A of the Act. It further clarifies
that either of said sections can be availed and not under both.
While inviting my attention to the reasons assigned by the
Tribunal, learned advocate had submitted that no error can be
therefore found with the approach of the Tribunal in
entertaining the objections submitted by the respondent
Insurance Company, as the Tribunal has followed the
provisions of the Act in the facts of the case. Learned
advocate had also placed heavy reliance upon the
observations made by Hon'ble Supreme Court in the case of
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Deepal Girishbhai Soni (supra) more particularly
paragraph 38, 52, 53 and 57 and has submitted that it has
been clearly ruled out that the claimant shall be entitled to
opt / elect to go either under Section 166 or Section 163A of
the Act, but not under both. As regards the submission made
by learned advocate for the petitioners on the issue of
applicability of the aforesaid principles prospectively or
retrospectively, is concerned, learned advocate had submitted
that admittedly the accident had occurred on 4 th September,
1998. The aforesaid ruling of the Hon'ble Supreme Court was
pronounced on 18.3.2004 when the proceedings before the
Tribunal were pending consideration. He has therefore
submitted that the Tribunal has rightly applied the aforesaid
principles in the facts of the case. Referring to the decision of
Honourable Supreme Court in the case of Dhanbai Kanji
Gadhavi (supra). Learned advocate has submitted that
almost in similar set of facts, the Hon'ble Supreme Court has
ruled that the compensation determined and paid under
Section 163A of the Act is final and not an interim one,
therefore, the claimant cannot pursue the remedy thereunder
simultaneously and he must opt / elect to go either for
proceeding under Section 163A or section 166 of the Act, but
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not under both. The Hon'ble Supreme Court consequently
held the claimant being precluded from further proceeding
with the petition filed under Section 166 of the Act. Learned
advocate had therefore submitted that the aforesaid principles
being laid down by the Hon'ble Supreme Court is squarely
applicable to the facts of the case on hand and therefore has
prayed to summarily dismiss the present petitions and to
uphold the order passed by the Tribunal.
9. Apart from the aforesaid legal submissions being made on
the core issue raised by the learned advocate for the
petitioners, learned advocate had drawn my attention to the
fact that the writ petitions are grossly delayed and are
therefore also not required to be entertained. It was pointed
out that the impugned order under challenge in writ petition
being Special Civil Application No.13822 of 2022 is dated 4 th
of May 2013 whereas the petitions have been filed in the year
2022 i.e. after delay of almost 9 years. In absence of any
reasonable explanation with regard to delay being offered in
the writ petitions, this court may not invoke its supervisory
jurisdiction under Article 226 read with Article 227 of the
Constitution of India. The reliance was placed on the decision
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of Honourable Supreme Court in the case of Mrinmoy Maity
vs. Chhanda Koley and others reported in 2024 SCC
Online 551, more particularly, the observations made in para
9. By making aforesaid submissions, learned advocate has
further raised contention that statutory remedy of appeal is
provided in view of provision of Section 173 of the Act of 1988
as well as Section 96 of the Code of Civil Procedure. He has
further submitted that it is a settled position of law that where
the legislation provides efficacious statutory remedy, the writ
Court should not exercise its discretion unless a case is made
out on the gross miscarriage of justice. In absence of any
averments in this regard being pleaded in the writ petitions,
this Court may not exercise its discretion despite statutory
remedy of appeal being provided by entertaining the writ
petitions under Article 226 read with Article 227. He has
therefore urged this Court to dismiss the petitions and to
uphold the order of the Tribunal under challenge.
10. I have carefully considered the submissions made by the
learned advocates for the respective parties at length and
have also perused the impugned orders passed in the
respective claim petitions by the Tribunal. The only question
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which arises for consideration of this Court is as to whether
the tribunal committed any jurisdictional error while passing
impugned orders, in the facts of the case , by applying the
legal principles settled by Supreme Court in the case of
Deepal Soni in dismissing claim petition under section 166 of
the Motor Vehicle Act,1988, where compensation under
section 163A was affirmed as interim compensation by
appellate court and such compensation was made subject to
main petition under section 166 of the Act.?
11. Before dealing with merits of case, though learned
advocate for the respondent -Insurance Company in one of the
writ petition has raised objection with regard to
maintainability of the writ petitions, as against the efficacious
remedy of appeal being provided under Section 173 of the
Act, 1988, considering the fact that the notice has been issued
by the Coordinate Bench of this Court and the matter being
pending consideration for substantial period of 3 years, this
Court at belated stage of proceedings at flag end where
matters are heard finally, is not inclined to dwell into the issue
of maintainability as well as on the issue of delay and laches,
rather it would be appropriate to deal with the core issue
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raised by the learned advocate for the petitioners.
12. On bare appreciation of the facts of the case as recorded
earlier, indisputably, the original claim petitions have been
preferred at the instance of the present petitioners- original
claimants under Section 166 of the Motor Vehicle Act, 1988.
Pending the aforesaid claim petitions before the Tribunal,
interim applications have been filed by the original claimants
under Section 163 A of the Act, 1988, inter alia praying for
interim compensation, pending the adjudication of the main
claim proceedings under Section 166 of the Act. It is also an
undisputed fact that at appropriate stage, the Tribunal upon
appreciation of the facts of each case has passed appropriate
orders awarding interim compensation with interest and
proportionate costs in favour of the original claimants. The
aforesaid interim award granted by the Tribunal was subject
matter of challenge in the respective petitions at the instance
of the original opponent- Insurance Company, before this
Court by way of First Appeal, preferred under Section 173 of
the Act, 1988 in sca no. 13822 of 2022 and sca no. 14139 of
2022.
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13. Considering the controversy raised, it would be
appropriate to look into the facts of the case of Deepal Soni
(supra), as recorded by the Hon'ble Supreme Court, which
suggest that the appeal was filed by the appellant-claimant
against the judgement passed by this Court in First Appeal
whereunder the claim of the appellant was calculated, limiting
the income of the deceased at Rs.40,000/- pa. The review
applications were subsequently filed in view of the judgement
pronounced in the case of Hansrajbhai V Kodala (Supra).
The aforesaid appeal was heard along with the Special Leave
Petition preferred against the judgement of High Court of
Himachal Pradesh passed in First Appeal. The Division Bench
of the Hon'ble Supreme Court doubting the correctness of two
Judges Bench decision in the case of Hansrajbhai v Kodala
(supra) had referred the matter to a three Judges Bench.
Taking a view that the proceedings under Section 163A of the
Motor Vehicle Act, 1988, to be a final proceedings as a result
whereof the claimants were debarred from proceeding with
their further claim made on the basis of no fault liability in
terms of Section 163A of the Motor Vehicle Act, 1988. The
three Judges Bench of Hon'ble Supreme Court was called
upon to answer the issue as to whether a proceeding under
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section 163A of the Motor Vehicle Act, 1988 is a final
proceeding, by reason whereof, a 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. The Hon'ble three Judges
Bench in the case of Deepal Soni (supra), while dismissing
the claim and review petitions in terms by order dated
18.93.2004, observed and held as under:
"42. Section 163-A was, thus, enacted for grant of
immediate relief to a section of people whose annual
income is not more than Rs. 40,000/- having regard to
the fact that in terms of Section 163-A of the Act read
with the Second Schedule appended thereto;
compensation is to be paid on a structured formula not
only having regard to the age of the victim and his
income but also the other factors relevant therefor. An
award made thereunder, therefore, shall be in full and
final settlement of the claim as would appear from the
different columns contained in the Second Schedule
appended to the Act. The same is not interim in nature.
The note appended to column 1 which deals with fatal
accidents makes the position furthermore clear stating
that from the total amount of compensation one-third
thereof is to be reduced in consideration of the
expenses which the victim would have incurred
towards maintaining himself had he been alive. This
together with the other heads of compensation as
contained in column Nos. 2 to 6 thereof leaves no
manner of doubt that the Parliament intended to lay 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 for proving that the
accident occurred owing to negligence on the part of
the driver of the motor vehicle or any other fault
arising out of use of a motor vehicle.
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48. By reason of the Section 163-A, therefore, the
compensation is required to be determined on the
basis of a structured formula whereas in terms of
Section 140 only a fixed amount is to be given. A
provision of law providing for compensation is
presumed to be final in nature unless a contra
indication therefore is found to be in the statute either
expressly or by necessary implication. While granting
compensation, the Tribunal is required to adjudicate
upon the disputed question as regard age and income
of the deceased or the victim, as the case may be.
Unlike Section 140 of the Act, adjudication on several
issues arising between the parties is necessary in a
proceeding under Section 163-A of the Act.
50. Apart from the fact that compensation is to be paid
by applying multiplier method under the Second
Schedule other relevant factors, namely, reduction of
one-third in consideration of the expenses which the
victim would have incurred towards maintaining
himself, general damages in case of death as also in
the case of injuries and disabilities as also the
disability in non-fatal accidents, a notional income for
compensation to those who had no income prior to
accident are provided for, are required to be
considered which is also a clear pointer to the fact that
thereby the Parliament intended to provide for a final
amount of compensation and not an interim one.
51. The scheme envisaged under Section 163-A, in our
opinion, leaves no manner of doubt that by reason
thereof the rights and obligations of the parties are to
be determined finally. The amount of compensation
payable under the aforementioned provisions is not to
be altered or varied in any other proceedings. It does
not contain any provision providing for set off against a
higher compensation unlike Section 140. In terms of
the said provision, a distinct and specified class of
citizens, namely, persons whose income per annum is
Rs. 40,000/- or less is covered thereunder whereas
Sections 140 and 166 cater to all sections of society.
52. It may be true that Section 163-B provides for an
option to a claimant to either go for a claim under
Section 140 or Section 163-A of the Act, as the case
may be, but the same was inserted 'ex-abundanti
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cautela' so as to remove any misconception in the mind
of the parties to the lis having regard to the fact that
both relate to the claim on the basis of no-fault
liability. Having regard to the fact that Section 166 of
the Act provides for a complete machinery for laying a
claim on fault liability, the question of giving an option
to the claimant to pursue their claims either under
Section 163-A or Section 166 does not arise. If the
submission of the learned counsel is accepted the
same would lead to an incongruity.
53. Although the Act is a beneficial one and, thus,
deserves liberal construction with a view to
implementing the legislative intent but it is trite that
where such beneficial legislation has a scheme of its
own and there is no vagueness or doubt therein, the
court would not travel beyond the same and extend the
scope of the statute on the pretext of extending the
statutory benefit to those who are not covered thereby.
(See Regional Director, Employees' State Insurance
Corporation, Trichur Vs. Ramanuja Match Industries).
56. It is now well-settled that for the purpose of
interpretation of statute, same is to be read in its
entirety. The purport and object of the Act must be
given its full effect. [See High Court of Gujarat & Anr.
Vs. Gujarat Kishan Mazdoor Panchayat & Ors. Indian
Handicrafts Emporium and Others vs. Union of India
and Others, Ameer Trading Corporation Ltd. vs.
Shapoorji Data Processing Ltd. and Ashok Leyland Vs.
State of Tamil Nadu and Anr.. The object underlying
the statute is required to be given effect to by applying
the principles of purposive construction.
57. We, therefore, are of the opinion that remedy for
payment of compensation both under Sections 163-A
and 166 being final and independent of each other as
statutorily provided, a claimant cannot pursue his
remedies thereunder simultaneously. One, thus, must
opt/elect to go either for a proceeding under Section
163-A or under Section 166 of the Act, but not under
both.
59. The question may be considered from different
angles. As for example, if in the proceedings under
Section 166 of the Act, after obtaining compensation
under Section 163-A, the awardee fails to prove that
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the accident took place owing to negligence on the
part of the driver or if it is found as of fact that the
deceased or the victim himself was responsible
therefor as a consequence whereto the Tribunal
refuses to grant any compensation; would it be within
its jurisdiction to direct refund either in whole or in
part the amount of compensation already paid on the
basis of structured formula? Furthermore, if in a case
the Tribunal upon considering the relevant materials
comes to the conclusion that no case has been made
out for awarding the compensation under Section 166
of the Act, would it be at liberty to award
compensation in terms of Section 163-A thereof?
60. The answer to both the aforementioned questions
must be rendered in the negative. In other words, the
question of adjustment or refund will invariably arise
in the event if it is held that the amount of
compensation paid in the proceedings under Section
163-A of the Act is interim in nature."
11. The Court thus held that the remedy for payment of
compensation both under Section 163 A and 166 being final
and independent of each other as statutorily provided, a
claimant cannot pursue his remedies thereunder
simultaneously. It was therefore held that it shall be open for
the claimant to opt /elect, proceeding under section 163A or
166 of the Act, but cannot avail both remedies simultaneously.
As regards the question of adjustment or refund is concerned,
the Court was of the view that such eventuality may be
considered in a case, if it is held that the amount of
compensation paid in the proceedings under Section 163A of
the Act is interim in nature. The Hon'ble Supreme Court has
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held that Section 163A nowhere provides that payment of
compensation of no fault liability in terms of the structure
formula under Schedule 2 is in addition to any right to claim
compensation on principle of fault liability. The Court
therefore, clarified that though Section 163B provides for an
option to a claimant to either go for a claim under Section 140
or Section 163A of the act, as the case may be, but the same
was inserted ex-abedentiae cautela, so as to remove any
misconception in the minds of the parties to the lis having
regard to the fact that both relate to the claim on the basis of
no fault liability. Considering the Objects and Reasons of the
Motor Vehicles (Amendment) Act of 1994 introducing section
163A in the Motor Vehicle Act, 1988, the Hon'ble Supreme
Court has observed that although the Act is a beneficial one
and deserves liberal construction in order to implement the
legislative intent, but it is right that once the Act itself has a
distinct scheme of its own, the Court would not travel beyond
the same and extend the scope of the statute on the pretext of
extending the statutory benefit to those who are not covered
thereby. Thus, the Court though held that the remedy for
payment of compensation of no fault liability both under
section 163A and 166 being final and independent of each
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other as statutorily provided and the claimant being precluded
from availing the aforesaid remedies simultaneously, agreed
with the view expressed by the two Judges Bench, of the
Hon'ble Supreme Court in the case of Hansrajbhai Kodala
(Supra) to treat the right to get compensation in addition to
the no fault liability under section 163 A of the Act. However,
in matters decided by the Tribunal, wherein the amount of
compensation under Section 163A is treated as an interim
award and part of such award amount being permitted to be
withdrawn as appears from the record in the facts of the case,
the Court had accepted the submission made by learned
counsel for the appellant to treat the application preferred
under section 163 A to be filed under Section 140 of the Act
and the amount was permitted to be adjusted. At this stage, it
would be appropriate to note that in Deepal Soni's case, the
claimants have preferred to separate applications ie. Under
section 163A and section 166 of the Act which were
registered as MACP no. 2133 of 1988 and 2134 of 1998.
Despite the aforesaid intention of claimants of having availed
two separate remedies and not as an interim application , the
Court in it's extraordinary jurisdiction under Article 142 of the
Constitution of India, in para 68 to 71, further observed that
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the amount invested by the Tribunal may be allowed to be
withdrawn by the respondent Insurance Company.
Consequently, the Tribunal was directed to proceed to
determine their claim petitions filed under Section 166 of the
Act in accordance with law. The Hon'ble Supreme Court at
that stage had clarified that the same may not be treated as a
precedent.
12. Insofar as the submission made by learned advocate for
the Respondent Insurance Company referring to the decision
of Hon'ble Supreme Court in the case of Dhanbai Kanji
Gadhavi (supra), it is evident from the facts of the case as
recorded by the Hon'ble Supreme Court, the challenge was
made by the Insurance Company against the judgment
rendered by the learned Single Judge of this Court in writ
petition by which the order passed by the Tribunal permitting
the respondents, who had already obtained compensation
under Section 163A of the Motor Vehicle Act, 1988, to
proceed with the application filed under Section 166 of the
Act of 1988. It was contended that the accident had taken
place on 17th June, 1997 and the claim petition was filed by
the legal heirs of the deceased under Section 166 of the Act
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and pending such claim proceedings, the application at
Exhibit 6 was preferred under Section 163A of the Act seeking
compensation on the principle of no fault liability. Such
application was partly allowed by the tribunal and pursuant
thereto the Insurance Company had deposited the aforesaid
amount and the claimants were permitted to withdraw such
amount with further direction of investing part of the amount
in the fixed deposit. The application was preferred by the
Insurance Company objecting to petition under Section 166 in
view of the decision of the Hon'ble Supreme Court in the case
of Oriental Insurance Company Limited versus
Hansrajbhai V Kodala reported (2001) 5 SCC 175. The
further proceedings were stayed by the tribunal and in
meanwhile the Insurance Company preferred an appeal
against award under section 163A of the Act, which was
dismissed by this Court on the ground of delay. The
respondent therefore moved an application seeking
permission before the Tribunal to proceed with the claim
petition preferred under Section 166 of the Act. At that stage,
they had given an 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 while allowing
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such application directed disbursement of the amount in
favour of the claimant and part of the amount being invested.
It was also clarified that the amount awarded under Section
163A shall be adjusted to the final award to be passed under
Section 166 of the Act. Being aggrieved by the aforesaid
order, the Insurance Company had challenged the aforesaid
order by filing writ petition before this Court. The learned
Single Judge having dismissed the aforesaid application
affirming the view of the Tribunal, the Insurance Company has
approached in appeal before the Hon'ble Supreme Court. The
reliance was placed on the decision of three Judges Bench of
this court in the case of Deepal Girishbhai Soni (supra),
applying the principles laid down in Deepal Girishbhai Soni
(supra) to the facts of the case, the Hon'ble Supreme Court
held that having obtained compensation finally determined
under Section 163 A of the Act, the claimants were precluded
from proceeding further with the petition filed under Section
166 of the Act. In the facts of the case, the Hon'ble Supreme
Court disagreed with the reasons assigned by the High Court
that section 166 of the Act can be proceeded further if it is
filed before passing of an award under section 163A and 166
of the Act as it is contrary to the principle of law laid down by
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this court in Deepal Soni's case and is not supported by the
scheme envisaged under the Act. However, perhaps the
Court's attention was not invited to the observations made in
para 68 to 71 in background of the facts recorded in para 5 to
13. Having noted the facts of the case and the legal
principles applied, in the aforesaid judgments, it is explicit
that the compensation awarded by the Tribunal under Section
163A of the Act was not subject matter of challenge and
therefore when legal proposition was settled by the Hon'ble
Supreme Court in case of Deepal Soni (supra), the tribunal
in absence of appellant court's directions to treat it as interim
compensation, had jurisdiction to dwell into aforesaid aspect.
Whereas, in the facts of the present case, the Tribunal while
awarding compensation has expressly treated the application
preferred under Section 163A as interim compensation. Even
otherwise appreciating the facts of the case as recorded
earlier in this order, the intention of claimants as can be
gathered from pleadings and the orders passed by tribunal as
well as by this Court in appeal , was to treat application under
section 163A of the Act as interim application and in so many
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words or has been clarified to be made subject to final
adjudication of main claim petition under section 166. In all
the petitions, the tribunal had not given any option to the
claimant to seek either of the remedies, after judgment of the
Hon' ble Supreme Court in case of Deepal Soni (supra).
Admittedly, the main claim proceedings preferred by the
original claimants under Section 166 of the Act, 1988, were
pending consideration as on date of passing impugned orders.
Even in appeal preferred before this Court, the Hon'ble
Division bench in First appeal no. 162 of 2000 ( Judgement
dated 29.03.2000, Coram : Hon'ble Mr. Justice H. R. Shelat
and Mr. Justice H. H. Mehta) and First appeal no. 4532 of
1999 (Judgment dated 20.08.1999, Coram : Hon'ble Mr.
Justice J.M. Panchal and Mr. Justice R.P. Dholakia) while
refusing to entertain the appeal of Insurance company on
merits have explicitly stated the award impugned shall be
treated as interim compensation. In such circumstances,
whether the tribunal was conferred with jurisdiction to once
again dwell into issue as to whether to treat section 163A
application as final award and by applying subsequent ruling
to override the appellate court's direction in absence of any
further challenge. In the peculiar and distinguishing facts of
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the case, it would be appropriate to extend the benefit of the
observations made by Hon'ble Supreme Court in para 68 to 71
of Deepal Soni's case, by quashing and setting aside the
order impugned in the present petitions as well.
14. For the foregoing reasons, the impugned order dated
4th May, 2013 passed by the Motor Accident Claims Tribunal,
Kutch at Bhuj below Exh.33 filed in MACP No. 726 of 1997,
order dated 4th May 2013 passed by the Motor Accident Claim
Tri (Main), Kutch at Bhuj below Exhibit 55 in MACP No. 421
of 1997 as well as order dated 4 th May 2013 passed by the
Motor Accident Claim Tribunal, Kutch at Bhuj in below Exhibit
50 in MACP No. 146 of 1998 are hereby quashed and set
aside. The claim petitions are directed to be restored to its
original file. With this observation, noticing the fact that the
claim petitions relate to 1997 and 1998, the Tribunal is
directed to expedite the hearing of the claim petitions. Rule is
made absolute to the aforesaid extent in each of the petitions.
15. After the order was pronounced, considering the
contention of learned advocate Mr. Saluja for respondent
Insurance company, as regards delay in challenge to
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impugned orders, this court is of the view that the claimants
shall not pressed for interest for the interregnum period of
delay caused in preferring writ petition. The claimants are
also directed to file fresh undertaking before the tribunal that
the award amount received under section 163A of the Act
shall be governed by outcome of main claim proceedings. Let
such undertaking be filed by the respective claimants at the
earliest before the Tribunal before original claim proceedings
are fixed for hearing.
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
