ORDER Vinod K. Sharma, J.
1. This appeal has been filed by the National Insurance Company Limited against the award passed by the learned Motor Accident Claims Tribunal, Rup Nagar (for short the Tribunal) under Section 163A of the Motor Vehicles Act.
2. The brief facts of the case as brought out in the claim petition are that on 3.3.2000 some unknown person snatched an amount of Rs. 2,300/- from one Tirath Ram, while he was proceeding on Tractor No. PB-12-B-1813 from Chamkaur Sahib to his village Bassi Gujaran. The culprits after snatching the amount slipped away on Scooter No. PB-12-4771 and on alarm being raised Ranjit Singh and Jatinder Singh stopped their scooter and thereupon Tirath Ram narrated the incident of snatching. The said persons took Tirath Ram on the pillion of their scooter and started following the unknown culprits. Lakhwinder Singh deceased and Kishan Singh met them on the way and the whole incident was narrated to them also. Kishan Singh and Lakhwinder Singh also joined them in following the culprits and the police party of Bela Chowk also joined them in search of the culprits by making efforts to stop scooter No. PB-12-4771. Said culprits took a turn towards Behrampur and when they reached in the area of village Wajidpur, they intentionally turned their scooter with an intention to obstruct the scooter of Lakhwinder Singh bearing Registration No. CH-01-B-3473 to dissuade him and it was on account of wrong driving of the culprits that the scooter of Lakhwinder Singh got deflated and became out of control which struck against a Shisham tree planted by the road side and re-sultantly, he received multiple injuries and finally succumbed to his injuries. The accident, thus, was the result of use of scooter No. CH-01-B-3473 when the culprits tried to dissuade him from following them. It was pleaded that due to the wrong driving of the culprits the accident had taken place. F.I.R. No. 15 dated 3.3.2000 under Sections 356, 207, 279 and 304 I.P.C. was registered in Police Station Chamkaur Sahib. The deceased at the time of his death was 32 years of age and was employed in Food Corporation of India as labourer at Chamkaur Sahib and was also carrying on his agricultural work and dairy farm. It was the case of the claimants that they were entirely dependent on the, income of deceased Lakhwinder Singh and due to the sudden termination of his life in the said accident, they suffered huge mental, financial and social loss. The said scooter was owned by respondents No. 1 and 2 and the same was insured with National Insurance Company Ltd., respondent No. 3. The parents of Lakhwinder Singh i.e. Sadhu Singh and Lakshmi Kaur were joined as proforma respondents. On these pleadings petition for compensation was filed.
3. Lakhbir Singh, respondent No. 1 did not contest the claim, who was proceeded ex parte, whereas the claim was contested by respondent No. 2 pleading that Lakhbir Singh was the owner of the scooter in question and Ranjit Singh had nothing to do with the same. The National Insurance Company separately contested the claim petition by taking preliminary objection that the claim petition against the Insurance Company was not maintainable as the driver of Scooter No. CH-01-3473 was not holding a valid and effective driving licence issued by the competent authority at the time of the accident. It was also pleaded that the claim petition was bad for non-joinder and mis-joinder of necessary parties as insurer of Scooter No. PB-12-4771 had not been impleaded as party. However, on merit it was admitted that Scooter No. CH-01-B-3473 was insured with the answering respondent. It was denied that any accident took place with Scooter No. CH-01-B-3473. It was also the case of the Insurance Company that the claim petition has been filed to claim illegal compensation.
4. Respondents No. 4 and 5 supported the case of the claimants and prayed for the grant of compensation to them also.
5. On the pleadings of the parties the learned Tribunal was pleased to frame the following issues:
1. Whether death of Lakhwinder Singh took place on 3.3.2000 in the area of village Wazidpur out of the use of Scooter No. CH-01-B-3473? OPP
2. Whether the claimants are the only legal representatives and dependents on the deceased? OPP
3. Whether deceased Lakhwinder Singh was not holding a valid driving licence, at the time of accident? OPR
4. Whether the claim petition is bad for non-joinder and mis-joinder of necessary parties? OPR 4-A. Whether Scooter No. CH-01-B-3473, was being driven in violation of the terms and conditions of the insurance policy? OPR
5. Whether the claimants, are entitled to claim compensation? If so, to what amount and from whom? OPP
6. Issues No. 1, 2 and 3 were taken up together and it was held by the learned Tribunal that death of Lakhwinder Singh took place out of use of Scooter No. CH-01-B-3473 and the claimants along with Sadhu Singh and Lakshmi Kaur were held to be the legal heirs of the deceased. It was also held that Lakhwinder Singh held a valid driving licence at the time of the accident. Issue No. 4 was also decided against the respondent Insurance Company and it was held that the claim petition was not bad for mis-joinder and non-joinder of necessary parties. On Issue No. 4-A, it was held that the scooter was not being driven for organizing racing. Rather, Lakhwinder Singh was helping the other persons for chasing the culprits and naturally issue No. 4-A was also decided against the respondents. On Issue No. 5, the learned Tribunal noticed that at the time of accident the deceased was earning Rs. 10,000/- per month and no evidence was led in rebuttal and by relying upon a judgment of this Court reported as National Insurance Co. Ltd v. Indu Sharma and Ors. (2000-1) 124 P.L.R. 417 (Punjab and Haryana) learned Tribunal came to the conclusion that the claim petition was maintainable. Learned Tribunal in view of the provisions of Section 163A of the Act held that the income of the deceased was to be considered as Rs. 40,000/- only, and keeping in view the age of the deceased a multiplier of 17 was applied and compensation to the tune of Rs. 4,53,340/- was awarded in favour of the claimants along with a sum of Rs. 2,000/- for funeral expenses and Rs. 5,000/- for loss of consortium and in this way total compensation was awarded to the tune of Rs,4,60,340/- against Lakhbir Singh and National Insurance Company and the liability was held to be joint and several. The compensation was apportioned between the claimants and respondents No. 4 and 5. Costs of the petition were also awarded.
7. Shri L.M. Suri, learned senior counsel appearing for the appellant by placing reliance on the judgment of Hon'ble Supreme Court reported as Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda (2004-2) 137 P.L.R. 271, argued that provisions of Section 163A of the Act are in the nature of social provision providing for a distinct scheme and only those persons whose annual income is up to Rs. 40,000/- could take the benefit thereof and other claims were required to be determined in terms of Chapter XII of the Act. Para No. 64 of the judgment is reproduced as below:
We. therefore, are of the opinion that Kodala (2001-2) 128 P.L.R. 663 (S.C.) (supra), has correctly been decided. However, we do not agree with the findings of Kodala (supra) that if a person invokes provisions of Section 163A, the annual income of Rs. 40,000/- per annual shall be treated as a cap. In our opinion, the proceeding under Section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is up to the Rs. 40,000/- can take the benefit thereof. All other claims are required to be determined in terms of chapter XII of the Act.
8. The Hon'ble Supreme Court was further pleased to hold that the compensation under Sections 163A and 166 are final and independent of each other as was statutorily provided and therefore, it was not open to pursue the remedy simultaneously.
9. Learned Counsel for the appellant also placed reliance on a Division Bench judgment of this Court in the case Himachal Road Transport Corporation and Anr. v. Baldev Kumar Nayyer and Ors. (2006-2) 143 P.L.R. 75 to contend that the Tribunal cannot treat the petition filed under Section 166 of the Act under Section 163A by restricting the income to Rs. 40,000/-. In the said case, this Court by placing reliance on Deepal Girishbhai Soni's case (supra) set aside the award passed under Section 163A of the Act and remanded the case back for decision on the petition filed under Section 166 of the Act in accordance with law.
10. No body has put in appearance on behalf of the respondents.
11. The learned Tribunal had allowed the claim petition filed under Section 163A of the Act by relying upon the judgment of Hon'ble Single Judge of this Court in Indu Sharma's case (supra) by holding that the reading of Section 163A did not indicate that this was to apply only if the annual income of the deceased was within the range of Rs. 40,000/-. The Hon'ble Single Judge came to the conclusion that the close scrutiny of the IInd Schedule showed that the legislature has specified various multipliers keeping in view the age of the victims and further guide-lines have been given about the other amounts of compensation under various heads such as funeral expenses, loss of consortium and loss to the estate. However, in view of the judgment of the Hon'ble Supreme Court which is relied upon by the Division Bench of this Court, it cannot be said that the said judgment lays down good law and can be deemed to have been impliedly overruled.
12. It has been categorically laid down by the Hon'ble Supreme Court in the case of Deepal Girishbhai Soni's case (supra) that the provisions of Section 163A of the Act would be applicable if the income is up to Rs. 40,000/- per annum and to no other person. The Hon'ble Division Bench of this Court by relying upon the judgment of Hon'ble Supreme Court in Deepal Girishbhai Son's case (supra) has further laid that a petition under Section 166 of the Act cannot be treated to be one under Section 163A by restricting the income at Rs. 40,000/- per annum.
13. It is not in dispute that in the present case, the income of the deceased was shown to be Rs. 10,000/- per month and therefore, the claimants were not entitled to invoke the provisions of Section 163A of the Act. Therefore, I agree with the contention raised by the learned Counsel for the appellants that petition under Section 163A of the Act, in the present case, was not competent. It has not been shown whether any application under Section 166 of the Act was also filed and therefore, no comments are called on this aspect of the matter.
14. In view of the finding recorded above, this appeal is accepted and the award of the learned Tribunal is set aside by holding that application under Section 163A of the Act was not competent.