Omana Chetan Vs. M/S. Oriental Insurance Company Ltd. and Others - Court Judgment

Excerpt:
motor vehicles act, 1988 - section 166, section 163-a – accident occurred due to rash and negligent driving – death and injuries - enhancement of compensation seeked - when deceased was travelling in his vehicle, along with his wife and daughter, driven by driver, offending lorry, in a rash and negligent manner dashed against car in which deceased and his family sustained grievous injuries – tribunal allowed claim petitions, awarding a sum under different heads, for injuries sustained by claimant/wife of deceased and, for death of deceased with interest – petitioners seeked enhancement of compensation - hence instant petition issue is – whether petitioners/claimants are entitled to enhanced compensation court held - it is crystal clear that, persons whose annual income is up to rs.40,000/-, such claims have to be dealt under section 163-a of the act, 1988 and all other claims where annual income of persons is more than rs.40,000/- have to be dealt and determined in terms of chapter xii of the act -  said exercise has not been done, where deceased of petitioner was earning more than rs.5.00 lakhs per annum as per income tax returns filed by him and was an income tax assesses - matter remanded back to tribunal for reconsideration and re-determination of compensation afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to parties - impugned award of motor accident claims tribunal, hereby set aside - appeals allowed. cases relied: deepal girishbhai soni and others vs. united insurance company limited, baroda reported in air 2004 sc 2107 (prayer: this mfa is filed u/s 173 (1) of mv act against the judgment and award dated: 30/03/2007 passed in mvc no.5822/2004 on the file of the judge, court of small causes, member, motor accident claims tribunal, bangalore (scch-9), partly allowing the claim petition for compensation and seeking enhancement of compensation.) 1. these two appeals respectively by the wife of deceased late s.r. chetan for the injuries sustained by her and by the wife and daughter of deceased late s.r. chetan, on account of the death of the deceased late s.r. chetan, are directed against the common judgment and award dated 30th march 2007, passed in mvc nos.5822/2004 and 5814/2004 respectively, by the judge, court of small causes, member, motor accident claims tribunal, bangalore (scch-9), (for short, tribunal) for enhancement of compensation on the ground that, the compensation of rs.1,03,000/- and rs.4,63,400/- awarded in their favour as against their claim for rs.25,00,000/- and rs.50,00,000/- respectively is inadequate and needs enhancement. 2. the claimants in both the claim petitions had filed the claim petitions originally under section 166 of the motor vehicles act, but, subsequently, by way of amendment, the same were converted into under section 163-a of the m.v. act. they contended that, when the deceased was travelling in his own tata sumo bearing registration no.ka-13/b-6363 on nh-4 along with his wife and daughter, driven by the driver, near kodur village, andhra pradesh, the offending lorry bearing registration no.up-78/n-2979 being driven by its driver, in a rash and negligent manner came from opposite side and dashed against the tata sumo in which the deceased and his family were travelling. due to the impact, all the inmates of the tata sumo sustained grievous injuries and they were shifted to government hospital, hindupur. but, unfortunately, the deceased s.r. chetan succumbed to the injuries in the hospital and thereafter the wife and daughter were shifted to shivarashivappa hospital at hassan, where they took treatment as inpatient for a long time. 3. on account of the injuries sustained by the appellant/wife of deceased in mfa no.9864/2007, and on account of the death of the deceased s.r. chetan, the claimants in both the claim petitions filed the respective claim petitions before the tribunal, seeking compensation against the respondents. since both the claim petitions arose out of the same accident, resulting in injuries to the wife and death of deceased husband, both the claim petitions were clubbed together and a common judgment was passed. both these claim petitions had come up for consideration before the tribunal on 30th march, 2007. the tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed both the claim petitions in part, awarding a sum of rs.1,03,000/-under different heads, for the injuries sustained by the claimant/wife of deceased and rs.4,63,400/- under different heads, for the death of the deceased s.r. chetan, with 6% interest per annum, from the date of petition till the date of deposit. not being satisfied with the quantum of compensation awarded by tribunal, the claimants in both the claim petitions have filed these appeals, seeking enhancement of compensation. 4. the submission of the learned counsel appearing for appellants in both the appeals, shri.r.nataraj, at the outset is that, due to bona fide mistake on the part of the counsel who represented the claimants before the tribunal, the claim petitions which were originally filed under section 166 of the m.v. act were got converted into section 163-a of the m.v. act, on a mistaken notion, without knowing the relevant provisions of the motor vehicles act and well settled law laid down by the honble apex court in the case of deepal girishbhai soni and others vs. united insurance company limited, baroda reported in air 2004 sc 2107, wherein the honble apex court has specifically observed that, where the annual income of the persons/deceased involved in the claim petition is more than rs.40,000/-, such claim petition is required to be determined in terms of chapter xii of the motor vehicles act. by inadvertence and on a mistaken notion, the ratio of law laid down in the aforesaid judgment has not been brought to the notice of the tribunal, when the matter was taken up for consideration. further, he submitted that the tribunal ought not to have allowed the amendment applications filed for conversion of the claim petitions from section 166 of m.v. act to under section 163-a of the m.v. act and the same cannot be sustained. in fact, in the case on hand, the deceased had annual income of more than rs.5.00 lakhs as per the returns filed by him at ex.p5, before the income tax authorities and other material available on file. therefore, he vehemently submitted that the impugned judgment and award passed by tribunal may be set aside on this sole ground and the appellants may be permitted to adduce additional oral and documentary evidence and appropriate direction be issued to tribunal to decide the matter on merits, in accordance with law, after affording reasonable opportunity of hearing to both the parties. œfurther, he is quick to point out and submit that the tribunal, while passing the impugned judgment, at paragraph 9, internal page 7, has observed that when the cases were posted for arguments, there was no representation and hence, it had no benefit of arguments of both the sides. therefore the judgment was reserved and thereafter pronounced in open court. if reasonable opportunity had been given, the parties might have substantiated their respective cases and brought to the notice of the ratio of law down by the honble apex court in the case of deepal girishbhai soni and others vs., united insurance company limited, baroda reported in air 2004 sc 2107. therefore, having regard to all these aspects, the impugned judgment and award passed by tribunal be set aside and the matter be remanded back to tribunal for reconsideration afresh, in accordance with law.? 5. as against this, learned counsel appearing for insurer, inter alia, sought to justify the impugned judgment and award passed by tribunal, stating that the same is passed after critical evaluation of the oral and documentary evidence available on file and interference in the same is uncalled for. œhowever, after going through the ratio of law laid down by the honble apex court in the case of deepal girishbhai soni and others vs. united insurance co. ltd. baroda (supra), particularly paragraph 67, he fairly submitted that the matter requires reconsideration by tribunal and appropriate direction be issued to tribunal to decide the matter on merits, in accordance with law.? 6. after careful consideration of the submission of the learned counsel appearing for both parties and after perusal of the impugned judgment and award passed by tribunal, it emerges that, occurrence of accident and the resultant injuries to the wife of deceased s.r. chetan and death of s.r. chetan in the road traffic accident are not in dispute. the claimants in both the claim petitions are none other than the wife, for the injuries sustained by her and wife and daughter of deceased for the death of deceased s.r. chetan. earlier, both the claim petitions were filed under section 166 of the motor vehicles act, claiming compensation. after going through the records, it emerges that, unfortunately, subsequently, on a mistaken notion, they have filed amendment applications for conversion of the said claim petitions to section 163-a of the m.v. act. it further emerges after microscopic evaluation of the material that, the claim petitions are filed seeking compensation of rs.25.00 lakhs and rs.50.00 lakhs respectively for the injuries caused to the injured claimant and death of deceased s.r. chetan. the said amendment applications were allowed by tribunal and the counsel was directed to carry out the amendment. 7. it is significant to note here itself that, amendment was, in fact, not carried out properly inasmuch as in only one claim petition, the amendment was carried out and the other claim petition was left as it is, i.e. as the one filed under section 166 of the m.v. act, without carrying out amendment. 8. it is further significant to note the observation made by the tribunal at paragraph 9 of its judgment that, when the cases were posted for arguments, there was no representation of either the counsel for appellants or the counsel for respondents and the tribunal had no benefit of arguments of both sides and the case was reserved for judgment and the same was decided on the basis of the records available on file. the learned presiding officer ought to have seen the aim and object of the act and the preamble of the enactment and taken note that, the deceased in the case on hand was earning a sum of rs.5.00 lakhs per annum and therefore ought to have taken judicial note and proceeded on the basis of the original claim petitions filed under section 166 of m.v. act by the claimants or at least might have afforded an opportunity of hearing to the claimants who were represented by the counsel. if the counsel for both the parties were absent and not available to assist the court when the matter was taken up for consideration, then, the tribunal ought to have issued court notices to the parties themselves directing them to appear personally, giving specific date. admittedly, there is no exercise as such done in this case. it only shows the casual manner in which the tribunal has proceeded to conduct the proceedings involving death of a person and injuries to the claimant. 9. further, as rightly pointed out by learned counsel appearing for claimants, it is worthwhile to extract paragraph 67 of the judgment of the apex court in the case of deepal girishbhai soni and others vs. united insurance company limited, baroda reported in air 2004 sc 2107, which is as follows: œ67. we, therefore, are of the opinion that kodala (supra) has correctly been decided. however, we do not agree with the findings in kodala (supra) that if a person invokes provisions of section 163-a, the annual income of rs.40,000/- per annum shall be treated as a cap. in our opinion, the proceeding under section 163-a being a social security provision, providing for a distinct scheme, only those whose annual income is up to rs.40,000/- can take the benefit thereof. all other claims are required to be determined in terms of chapter xii of the act.? (emphasis supplied) after perusal of the aforesaid paragraph, it is crystal clear that, persons whose annual income is upto rs.40,000/-, such claims have to be dealt under section 163-a of the act and all other claims where the annual income of persons is more than rs.40,000/- have to be dealt and determined in terms of chapter xii of the act. the said exercise has not been done in the case on hand, where the deceased s.r. chetan was earning more than rs.5.00 lakhs per annum as per the income tax returns filed by him and was an income tax assessee. 10. therefore, having regard to all these aspects of the matter, as rightly pointed out by the learned counsel appearing for appellants and in the light of the judgment of the apex court in the case of deepal girishbhai soni and others vs. united insurance company limited, baroda reported in air 2004 sc 2107, the impugned judgment and award passed by tribunal cannot be sustained at any stretch of imagination and is liable to be set aside at the threshold, without going into the merits or demerits of the case as expressing any opinion on the merits or demerits of the case would definitely affect the stand/defence to be taken by the parties before the tribunal. 11. therefore, without expressing any opinion on the merits or demerits of appellants case, it would suffice for this court if appropriate direction is issued to the tribunal to reconsider the matter and dispose of the same, in accordance with law, to meet the ends of justice. 12. in the light of the discussion made above, the appeals filed by the claimants/appellants are allowed. the impugned common judgment and award dated 30th march 2007, passed in mvc nos.5822/2004 and 5814/2004 respectively, by the judge, court of small causes, member, motor accident claims tribunal, bangalore (scch-9), is hereby set aside; the matter stands remanded back to tribunal for reconsideration and re-determination of compensation afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the parties, personally or through their counsel and dispose of the same, as expeditiously as possible, within a period of six months from the date of receipt of copy of this judgment;. parties are permitted to file necessary application/s, for adducing additional evidence, oral/documentary, to substantiate their respective cases, within four weeks from the date of receipt of a copy of this judgment; in case such application/s is/are filed by the learned counsel for the parties, within the time stipulated above, the tribunal is directed to receive the same and proceed further and dispose of the same as expeditiously as possible, in compliance of the direction given by this court, as above; the appellants and respondents are directed to appear before the jurisdictional tribunal on 03-02-2014, to enable them to take further dates of hearing, as requested. registry is directed to return the entire original records, if any received, to the jurisdictional tribunal, forthwith; further, the tribunal is directed to re-deposit the amount, if any, deposited by the insurer, in any nationalized/scheduled bank, until further orders, subject to the outcome of the judgment to be passed by tribunal. since the matter is remanded back to tribunal for reconsideration afresh, misc.cvl.nos.10429/2009 and 15842/2009 filed in m.f.a.no.9864/2007 and misc.cvl.nos.10427/2009 and 15841/2009 filed in m.f.a.no.9868/2007 do not survive for consideration and they are accordingly disposed of as having become infructuous.