ORIENTAL INSURANCE CO. LTD.versusDHANBAI KANJI GADHVI & ORS.

A
                       [2011] 1 S.C.R. 784


                ORIENTAL INSURANCE CO. LTD.
                                                                   •
                                v.
                DHANBAI KANJI GADHVI & ORS.
                 (Civil Appeal No. 682 of 2011)
                       JANUARY 17, 2011
B
           [J.M. PANCHAL AND H.L. GOKHALE, JJ.]

       Motor Vehicles Act, 1988 - ss. 163A and 166 -
  Proceedings both u/ss. 163A and 166 - Permissibility of -
C Motor accident resulting in death of a person - Application
  uls. 166 by legal heirs of the deceased - Subsequent
  application uls. 163A claiming no-fault compensation -
  Application u/s. 163A partly allowed by the Tribunal -
  Thereafter, Tribunal permitting the claimants to proceed with
o the application filed uls. 166 - Order of the Tribunal upheld
  by High Court - On appeal, held: Claimant must opt/elect to
  go either for a proceeding u/s. 163A or u/s. 166 but not under
  both - Claimants having obtained compensation, finally
  determined uls. 163A were precluded from proceeding further
E with the petition filed u/s. 166 - Thus, order of the Tribunal
  permitting the claimants to proceed further with the petition
  filed u/s. 166 as upheld by the High Court, not sustainable
  and is set aside.

       Deepali Girishbhai Soni and Ors. vs. United India
F Insurance Co. Ltd.Board (2004) 5 SCC ~85 - relied on.

        Oriental Insurance Co. Ltd. vs. Hansrajbhai V. Koda/a
    and Ors.   (2001) 5 SCC 175 - referred to.
                        Case Law Reference:
G
        1993 (3) sec 634         Referred to.         Para 5
        (2004) 5 sec 385         Relied on.          Para 13


H                              784
-               ORIENTAL INSURANCE CO. LTD. v. DHANBAI KANJI 785
                              GADHVI & ORS.
                     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 68·2            A
       _..      of 2011.

                    From the Judgment & Order dated 15.01.2010 of the High
                Court of Gujarat at Ahmedabad in Special Civil Application No.
                9400 of 2006.                                                       B
                     M.K. Dua for the Appellant.

                     Brajesh Kumar for the Respondents.

                     The following oder of the Court was delivered                  c
                                             ORDER

                     1. Leave granted.

                     2. This appeal is directed. against the judgment dated         D
                15.1.201 O rendered by the learned Single Judge of the High
       - -y
                Court of Gujarat at Ahmedabad in Special Civil Application
                No. 9400 of 2006 by which the order dated 23.12.2005 passed
                by the Motor Accident Claims Tribunal (MACT) Bhuj, Kachchh
                in M.A.C.P. No.759/97 permitting the respondents, who had
                                                                                    E
                already obtained compensation under Section 163A of the
                Motor Vehicles Act 1988 ('the Act' for short), to proceed with
....   __,.._   the application filed under section 166 of the Motor Vehicles
                Act 1988, is affirmed.

                      3. The respondents are the original claimants. On 17.6.97, F
               ' the deceased viz. ~nji Keshavbhai Gadhvi was riding his two
              · wheeler i.e. Luna. When he reached near IFFCO, the driver of
                 taxi bearing No.GJ-12-C-9484 who was coming from the
                 opposite direction dashed the taxi with the Luna as result of
                 which Kanjibhai lost his life. Therefore, the respondents who are - G
          -f-    legal heirs of the deceased respondent filed MACP No.759 of-
                 1997 under Section 166 of the Motor Vehicles Act against the
                 driver and owner of the taxi as well as against the petitioner
                 who is insurer of the taxi and claimed compensation of .
                 Rs. 7 ,50,000/-. The respondents had thereafter filed an H
    786      SUPREME COURT REPORTS                  [2011] 1 $.C.R.      • ..
A application at ExhibiL6 under section 163A of the Act and
  claimed compensation of Rs. 3,93,500/- on the principle of no
  fault liability.

       4. The Tribunal had partly allowed the application filed by
8 the respondents    under Section 163A of the Act and ordered
  the petitioner to pay a sum of Rs.2,65,500/- with 12% interest
  vide judgment dated 18.10.2000. The case of the petitioner is .
  that the petitioner had deposited the said amount and the
  respondents have already withdrawn and invested the amount              .Jr.
C of compensation as directed by the Tribunal.

          5. The present petitioner filed an application with a prayer
    that the application filed under Section 166 which was pending
    be rejected in view of the decision of this Court in Oriental
    Insurance Co. Ltd. Vs. Hansrajbhai V. Koda/a & Ors. (2001)
o   5 sec 175.

       6. The Tribunal by order dated 25.6.2002 granted stay of
  further proceedings of the petition filed under Section 166 of
  the Act till further orders. In the meanwhile, the petitioner
E challenged the award passed by the Tribunal under Section
  163A of the Act by filing First Appeal No.3019 of 2007. The
  appeal was dismissed on the ground of delay.

        7. The respondents thereafter filed an appiication with a
  prayer that they be permitted to proceed with the petition filed
F under Section 166 of the Motor Vehicles Act and they were
  ready to give 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 by an order dated
  23.12.2005 permitted the respondents to proceed with the
G petition filed under Section 166 of the Act. The Tribunal also
  directed that amount already disbursed in favour of the
  respondents and invested by them, pursuant to the award made
  under Section 163A shall be adjusted to the final award to be
  passed under Section 166 of the Motor Vehicles Act.
H
              . ORIENTAL INSURANCE CO. LTD. v. DHANBAI KANJI 787
                              GADHVI & ORS.
                    8. Feeling aggrieved, the petitioner preferred Special Civil   A
              ·Application No.9400 of 2006 before the High Court. The
               learned Single judge of the High Court has rejeqted the same
               ~Y judgment dated 15.1.201 O giving rise to the instant appeat

                    9. This Court has heard the learned counsel for the parties. · B

                   . 10. This. Court has perused the impugned judgment of the
                High Court. The reasons given by the High Court for upholding
              • permission granted by the Tribunal, to the respondents to
                proceed further with the petition filed under Section 166 of the
                Act, read as undE!r.                                               C·

                    "After he~ring and on perusal of the record and from the
                    scheme of the Act, it is clear that proceedings under
                    Sections 163A and 166 of the Act i.e. both proceeding~
                    are permissible. In my view, claimant can file both the 0
                    proceedings and opt for either of proceedings. The only_
                    condition is that application for proceeding. under section ·
                    166 should be filed before the award is passed . Here, in
                    this case, the proceedings were filed before the award is·
                    passed".
                                                                                   E
                      11. On consideration of the object of section 163A of the·
                Act which was inserted by Section 51 of the Act 54 of 1994
- -,,,...._
   ....         w.e.f. 14-11-1994, and the non-obstante clause with which sub-
                section (1) of Sec. 163A commences, it is manifest that the
                legislature did not intend to prevent the claimant from getting F
                compensation as per the structured formula merely because in ·
                his original claim petition he had prayed for compensation on
                the basis of "fault liability" principle. There is no prohibition in
                any provision of the Motor Vehicles Act 1988 against the
                claimant praying for compensation as per the structured formula G
                after having flied a claim petition under section 166 of the Act.
                Therefore, this Court finds that ·the respondents were perfectly
                justified in making an application at Exhibit 6 in MACP No. 759
                of 1997 which was filed under Section 166 of the· Act and
              , praying the Tribunal to award compens~tion to them on the H
                                                              .   '   .
    788      SUPREME COURT REPORTS                   [2011) 1 S.C.R.      ......

A   basis of the structured formula mentioned in Section 163A of
    the Act. This Court further finds that the Tribunal did not commit
    any error in entertaining the said application and awarding a
    sum of Rs.2,65,500/- as compensation to the respondents
    under Section 136A of the Act.
B
          12. However, in Deepa/ Girishbhai Soni & Ors. Vs. United
    India Insurance Co. Ltd., Baroda (2004) 5 SCC 385, the
    question which was considered by a three Judge Bench of this
    Court was whether a proceeding under Section 163A of the
C   Motor Vehicles Act, 1988 is a final proceeding, by reason
    whereof, the 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. After considering the scheme envisaged by Section 163A
    of the Act; it is held in the said case that Parliament intended
D   to lay down 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. What is ruled therein is that the
    compensation determined and paid under Section 163A of the
E   Act is final and not an interim one. The clear proposition of law
    which emerges from the decision of this Court in Deepal G. Soni
    (supra) is that the remedy for payment of compensation both
    under Sections 163A and 166 being final and independent of
    each other as statutorily provided, a claimant cannot pursue his
F   remedies thereunder simultaneously. As explained by this Court
    in the said decision, a claimant, thus, must opt/elect to go either
    for a proceeding under Section 163A or under Section 166 of
    the Act, but not under both.

G        13. Applying the principle laid down in Deepal Soni (supra)
    to the facts of the case, it will have to be held that the
    respondents having obtained co111pensation, finally determined
    under Section 163A of the Act are precluded from proceeding
    further with the petition filed under Section 166 of the Act. The
    exception mentioned by the learned Single Judge in the
H
   ORIENTAL INSURANCE CO. LTD. v. DHANBAI KANJI 789
                 GADHVI & ORS.
  impugned judgment that a petition under Section 166 of the Act        A
  can be proceeded further if it is filed before passing of an
  award passed under Section 163A of the Act is not supported
  by the scheme envisaged under Sections 163A and 166 of the
  Act and is contrary to the principle of law laid down by this Court
  in Deep<1I Soni's case. Therefore, this Court is of the opinion       B
- that the impugned judgment of the High Court upholding the
  order passed by the Tribunal to permit the respondents to
  proceed further with the petition filed under Section 166 of the
  Act cannot be sustained and will have to be set aside.

        14. For the foregoing reasons, the appeal succeeds. The         C
    order of the T-ribunal dated 23.12.2005 allowing the
  · respondents to proceed with the petition filed under Section
    166 of the Motor Vehicles Act, 1988 on the certain terms and
    conditions mentioned therein and the impugned judgment of the
    High Court upholding order of the Tribunal are hereby set aside.    D

      • :x.1~5. The appeal accordingly stands disposed of

   N.J.                                       Appeal disposed of.