- (1.) CHALLENGE in this appeal is to the order dated 5th July, 2000 rendered by Motor Accident Claim Tribunal, Jaipur District Jaipur, whereby the learned Tribunal passed an interim award of Rs. 94,500/- under Section 163-A of Motor Vehicles Act in favour of the claimants-respondents and against the appellant.
(2.) THE question which emerged for consideration before this Court was as to whether under Section 163-A of Motor Vehicles Act, the interim award could be passed by the Motor Accident Claims Tribunal. Relying on the judgment rendered by Single Bench of this Court, in the case of Oriental Insurance Co. Ltd. vs. Nathu Ram reported in 1999 WLC (UC) 185, learned Tribunal vide impugned order dated 5th July, 2000 passed an interim award of Rs. 94,500/- under Section 163-A of Motor Vehicles Act. This Court was of the opinion that under Section 163-A of Motor Vehicles Act, only a final award could be passed so far as the claim was concerned and after awarding compensation, as per the structural formula, no further proceedings were required to be drawn by the Tribunal for remuneration of compensation and thus, differed from ratio decidendi as laid in the case of Oriental Insurance Co. vs. Nathu Ram (supra). THEre being schism, this Court opined that the matter required consideration by a larger Bench, hence, vide order dated 12th October, 2000, directed the Registry to put the file before Honourable THE Chief Justice for constitution of larger Bench of two or three Judges on the following points:-(i) that the award passed u/s 163A of Chapter XI being passed after detailed evidence as to income, age and disability for compensation to be awarded under structural formula basis is in exclusion to award passed under Section 166 on negligence basis by a court of law; (ii)whether an issue which has already been disposed of can be reopened for the purpose of proceeding under Section 166; and (iii)whether u/s 163A and 166 provide two modes for determining the compensation one on fixed formula basis and another on assumption basis to be determined by the Tribunal, but in both the case the income, age and disability has to be determined by the Tribunal on the basis of the evidence led and that two proceedings are in exclusion of each other and proceedings u/s 163A cannot be construed to be an interim compensation as under Section 140 of the Motor Vehicles Act and;(iv)whether the judgment reported in 1999 WLC (UC) 185 in the case of Oriental Insurance Company Limited vs. Nathu Ram needs to be reconsidered wherein the award passed u/s 163A has been held to be an interim award. Honourable the Acting Chief Justice constituted a three Judge Bench, comprising of Mr. Justice R.M. Lodha, Mr. Justice Shiv Kumar Sharma and Mr. Justice Ashok Parihar which decided this issue vide order dated 21st September, 2007. Learned Full Bench, of this Court relying upon the judgments of Oriental Insurance Company Limited vs. Hansrajbhai V. Kodala&ors; and Deepal Girishbhai Soni&ors. vs. United India Insurance Company Limited, Baroda rendered by the Honourable Apex Court, held that the award passed by the Tribunal under Section 163-A of Chapter XI of the Motor Vehicles Act under structured formula was a final award and once that award had been passed, no further award under Chapter XII of the Motor Vehicles Act could be passed by the Tribunal. The Honourable Apex Court in Deepal Girishbhai Soni&ors. vs. United India Insurance Company Limited, authoritatively pronounced that the remedy for payment of compensation both under Sections 163-A and 166 was final and independent of each other; the claimant cannot pursue his remedies under Section 163-A and 166, simultaneously. One, thus, must, opt/elect to go either for a proceeding under Section 163-A or under Section 166 but not under both. This is what, the Full Bench held in paragraphs 57, 59, 60, 61, 62, 63 and 66, thus:- 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 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 therefore 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. 61. It is, therefore, evident that whenever the Parliament intended to provide for adjustment or refund of the compensation payable on the basis of no-fault liability, as for example, Sections 140 and 161 in case of hit and run motor accident, from the amount of compensation payable under the award on the basis of fault liability under Section 168 of the Act, the same has expressly been provided for and having regard to the fact that no such procedure for refund or adjustment of compensation has been provided for in relation to the proceedings under Section 163-A of the Act, it must be held that the scheme of the provisions under Sections 163-A and 166 are distinct and separate in nature. 62. It is also not of much relevance that in terms of Section 140 of the Act, the owner of the vehicle has been fastened with the statutory liability and in Section 163-A thereof both the owner as also his authorised insurer has been made so liable. 63. In Sub-Section (5) of Section 140 of the Act the expression also has been used which is indicative of the fact that the owner of the vehicle would be additionally liable to pay compensation under any other law for the time being in force. Proviso appended to Sub-Section (5) of Section 140 states that the amount of compensation payable under any other law for the time being in force is to be reduced from the amount of compensation payable under Sub-Section (2) thereof or under Section 163-A of the Act. Right to claim compensation under Section 140, having regard to the provisions contained in Section 141 is in addition to any other right to claim compensation on the principle of fault liability. Such a provision does not exist in Section 163-A. If no amount is payable under the fault liability or the compensation which may be received from any other law, no refund of the amount received by the claimant under Section 140 is postulated in the Scheme. Section 163-A, on the other hand, nowhere provides that the payment of compensation of no-fault liability in terms of the structured formula is in addition to the liability to pay compensation in accordance with the right to get compensation on the principle of fault liability. It is also not correct to contend that the expression any other law for the time being in force used in Section 140(5) would include any other provisions of Motor Vehicles Act. Had the intention of the Parliament been to include the other provisions of Motor Vehicles Act within the meaning of the expression in any other law for the time being in force, it could have said so expressly. The very fact that the Parliament has chosen to use the expression any other law, the same, in our considered opinion, would mean a law other than the provisions of the Motor Vehicles Act. The proviso appended to Sub-Section (5) of Section 140 of the Act is required to be given a purposive meaning........ 66. We may notice that Section 167 of the Act provides that where death of, or bodily injury to, any person gives rise to claim of compensation under the Act and also under the Workmen's Compensation Act, 1923, he cannot claim compensation under both the Acts. The Motor Vehicles Act contains different expressions as, for example, under the provision of the Act, provisions of this Act, under any other provisions of this Act or any other law or otherwise. In Section 163-A, the expression notwithstanding anything contained in this Act or in any other law for the time being in force has been used, which goes to show that the Parliament intended to insert a non-obstante clause of wide nature which would mean that the provisions of Section 163-A would apply despite the contrary provisions existing in the said Act or any other law for the time being in force. Section 163-A of the Act covers cases where even negligence is on the part of the victim. It is by way of an exception to Section 166 and the concept of social justice has been duly taken care of. Having reflected over the submissions made by the learned counsel for the parties and carefully scanned the claim petition, it is noticed that the claimants Satya Narain and Smt. Manni filed claim petition under Sections 166/163-A of Motor Vehicles Act read with Rule 10:2 of Motor Vehicles Rules, 1990 before the Tribunal. Learned Tribunal initiated the proceedings of the claim petition treating to have been filed under Section 163-A of Motor Vehicles Act and passed an interim award to the tune of Rs. 94,500/- as compensation. The Full Bench of this Court has already held that the award passed by the Tribunal under Section 163-A of Chapter XI of the Motor Vehicles Act under structured formula is a final award and once that award has been passed, no further award under Chapter XII of the Motor Vehicle Act could be passed by the Tribunal. Thus, in the light of pronouncement made by the Honourable Apex Court and answer to the reference given in this case by the Full Bench of this Court, the impugned order dated 5th July, 2000 wherein, the interim award has been passed seems to be totally contrary to the provisions of law and illegal, which deserves to be set aside.
(3.) FOR the reasons stated above, the impugned order dated 5th July, 2000 rendered by Motor Accident Claims Tribunal, Jaipur District, Jaipur being contrary to law stands set aside accordingly. The case is remitted back with the directions that the learned Tribunal should first decide as to whether proceedings on claim petition are to be initiated under Section 163-A or under Section 166 of Motor Vehicles Act and thereafter, decide the claim petition within a period of two months positively. In case, the proceedings on claim petition are initiated treating the same to have been filed under Section 166 of Motor Vehicles Act then the interim award under Section 140 of Motor Vehicles Act should be passed on the same day and the amount be disbursed to the claimants within one week and if the proceedings are initiated on claim petition under Section 163-A of Motor Vehicles Act then the trial should conclude unfailingly in two months from 30.11.2009. Both the parties are directed to appear before the Tribunal on 30.11.2009. The record of the case be sent to the concerned Tribunal forthwith through a special messenger. Appeal stands disposed of accordingly. ;