ABUL KHAYER Vs. UNION OF INDIA

JUDGEMENT

(1.) ONE Shri Abul Khayer and his minor daughters and sons preferred this appeal under Section 173 of the Motor vehicles Act, 1988 (hereinafter referred to as "the Act of 1988") read with Article 227 of the Constitution of India assailing the judgment and order dated 15-3-2001 passed by the learned Member, Motor Accident claims Tribunal (hereinafter referred to as "the Tribunal"), West Tripura, Agartala in t. S. (MAC) 101 of 1999 whereby and where under the learned Tribunal dismissed the claim petition filed by the appellants herein under section 166 of the Act of 1988 claiming compensation for the death of wife of the claimant-appellant No. 1 and mother of the claimant-appellant Nos. 2 to 5 in a motor accident.

(2.) HEARD Mr. S. Saha, learned counsel for the claimant-appellants. Also heard Mr. A. Lodh as well as Mr. S. Lodh, learned counsel for the respondents.

(3.) THE facts required for disposal of this appeal are : on 19th July 1998 at about 11. 30 hrs. while the deceased Fulchand Nessa, wife of the claimant-appellant No. 1 and mother of the claimant-appellants No. 2 to 5 was working as CPL under the Officer Commanding, 78 RCC (GREF), C/o 99 APO on Agartala bishalgarh road near Mayabati Tea Estate under Amtali Police Station, a Jeep bearing registration No. TRT-3067 coming from agartala side with a very high speed dashed the deceased, as a result of which she received grievous bleeding injury all over her body including her head and became unconscious. She was shifted to GB Hospital where she was declared dead by the doctor. At the time of death, the deceased was 30 years of age and her monthly income was rs. 2,000/- and left husband and four children as her legal heirs. Regarding the aforesaid accident, an FIR was lodged before the amtali Police Station, which was registered as Amtali PS Case No. 60 of 1998 under Sections 279/304 (A) of IPC. As the appellant no. 1 lost his wife and the remaining appellants lost their mother, they filed petition claiming compensation of Rs. 8,50,000/-under Section 166 of the Act of 1988 before the learned Member, MACT Tribunal, West tripura, Agartala, which was registered as t. S. (MAC) 101 of 1999. Along with the aforesaid petition, they also filed another petition under Section 140 of the Act of 1988 for interim award under 'no fault liability' scheme, which was registered as Misc. (MAC)24 of 1999. The respondent Nos. 2 to 4 filed their respective written statement against the claim petition under Section 166 and written objection against the petition under section 140 of the Act of 1988. After hearing the respective parties, the learned tribunal vide order dated 9-12-1999 awarded rs. 50,000/- in favour of the claimant-appellants under 'no fault liability' along with interest @ 12% per annum w. e. f. 4-3-1999 and pursuant to the aforesaid order, the respondent National Insurance Co. Ltd. deposited the aforesaid amount along with interest, total amounting to Rs. 57,771/-before the Tribunal by a cheque bearing No. 145478 dated 14-7-2000. On 25-2-2000, the respondent No. 1, Union of India through n/c. , 455 RMP. L (GREF) C/o. APO filed a petition under Order 1, Rule 10 of the Code of Civil Procedure read with Section 167 of the Act of 1988 stating that a sum of Rs. 1,17,315/- has already been paid to the next kin of the deceased worker as compensation under the Workmen's Compensation act, 1923 (hereinafter referred to as "the WC act") through the District Magistrate and collector, West Tripura, Agartala and prayed for recouping the amount from the compensation to be paid under Section 140 of the Act of 1988. In view of the aforesaid application of the respondent Union of India, the learned tribunal upon hearing the learned counsel of both sides vide order dated 15-3-2001 dismissed the claim petition (TS (MACT)101/99) on the ground of non-maintainability as the claimant-appellants had already received the amount of Rs. 1,17,315/- deposited by the respondent Union of India under the WC Act. Being aggrieved by the aforesaid order dated 15-3-2001 of the learned Tribunal dismissing the claim petition under Section 166 of the Act of 1988, the appellants herein filed the instant appeal.