SHERIFA BEEVI Vs. P KOMU

JUDGEMENT

(1.) Whether a petition filed under S.163A of the Motor Vehicles Act can be permitted to be amended to be one under S.140 and 166 is the question to be considered in this writ petition. There are related issues as well. Petitioners are the claimants in OP (MV) No. 2006/1995 on the file of the Motor Accidents Claims Tribunal, Kozhikode and the respondents herein are the respondents therein. The claim petition was filed for compensation on account of the death of the elder son of the first petitioner and brother of petitioners 2 to 7. The accident took place on 13/05/1995. The claim petition was filed, according to the averments in the writ petition, under S.163A of the Motor Vehicles Act, 1988. It is the contention of the petitioners that proceedings were thus instituted hoping to have expeditious disposal of the case. Finding that even after four years the matter could not be disposed of, they filed an interlocutory application for amending the petition to one under S.166 of the Act -- IA No. 1633/1998. A prayer under S.140 was also sought to be added in the process. By the impugned order dated 10/09/1999 the Tribunal dismissed the application holding that once having exercised an option to file a petition under S.163A of the Act a further option under S.140 cannot be made. It was also held that if such an attempt is allowed, a clever claimant may first file a petition under S.140, get the compensation and then switch over to S.163A and thus avail the benefit of both the provisions, which is against the spirit of S.163B. It is the contention of the petitioners that in view of S.395 of the Act whereby R.16 to 18 of O.6 having been made applicable to the proceedings before the Tribunal, the application should have been allowed.

(2.) In order to appreciate the contentions taken by the parties, it is necessary to advert to the relevant statutory provisions. R.16 to 18 of O.6 of the Civil Procedure Code read as follows:

(3.) Many of the questions with regard to the interpretation of S.140, 163A, 166 and 167 have been dealt with recently by the Supreme Court in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. ( 2004 (2) KLT 395 ). It has been held therein that payment of the amount of Rs. 50,000 in the case of death and Rs. 25,000 in the case of permanent disability in terms of S.140 of the Act is ad hoc in nature and that such compensation is without prejudice to and in addition to any other compensation under S.166 of the Act or any other law under which an applicant is entitled to compensation. Of course in view of the bar under S.167, except to the extent of exclusion as above, a claimant is entitled to pursue the claim either under the Motor Vehicles Act or under the Workmen's Compensation Act, but not under both. A claim under S.140 in the case of death and permanent disability for compensation of Rs. 50,000 or Rs. 25,000 as the case may be and the claim under S.163A for compensation under the structured formula will not go together. They are mutually exclusive in view of the specific bar under S.163B of the Act. Once a claim under S.163A has been made, there cannot be a claim under S.166 of the Act or vice versa since the award under either Section is in full and final settlement of all the claims under the Act. To quote from paragraph 51 of the judgment of the Supreme Court referred to above: