The National Insurance Company Ltd. v. GIRIJA and others (RP No. 744/2021 in OP(MAC) No.23/2020, High Court of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 13[TH] DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943** **RP NO. 744 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OP (MAC) 23/2020 OF HIGH COURT OF** ## **KERALA** ## **REVIEW PETITIONER/3RD RESPONDENT IN OP(MAC)NO.23/2020:** THE NATIONAL INSURANCE CO.LTD AMBIKA ARCADE M.G.ROAD, THRISSUR-680 001, REPRESENTED BY ITS MANAGER, NATIONAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, M G ROAD, ERNAKULAM-682 016. BY ADV SRI.LAL GEORGE, SC, NATIONAL INSURANCE COMPANY LIMITED ## **RESPONDENTS/PETITIONERS 1 TO 4 & RESPONDENTS 1 &2 IN** **O.P(MAC)NO.23/20:** 1 GIRIJA AGED 49 YEARS W/O LATE UNNIKRISHNAN, THEKKEKARA HOUSE, KANDANGODE, ERUMAPETTY, THIRSSUR-680 584. 2 VISHNU, AGED 25 YEARS S/O LATE UNNIKRISHNAN, THEKKEKARA HOUSE, KANDANGODE, ERUMAPETTY, THIRSSUR-680 584. 3 AKHIL, AGED 24 YEARS S/O LATE UNNIKRISHNAN, THEKKEKARA HOUSE, KANDANGODE, ERUMAPETTY, THIRSSUR-680 584. 4 MADHAVAN, AGED 76 YEARS WF/O LATE UNNIKRISHNAN, THEKKEKARA HOUSE, KANDANGODE, ERUMAPETTY, THIRSSUR-680 584. 5 SASI V.K, KUTTAPPAN, VIYYATHU HOUSE, OLLUR-680 306. 6 DEVASSYKUTTY P.R, K.A PALIYEKKARA VEEDU, P.O.NETTISSERY, THRISSUR-680651 BY ADV SHEJI P.ABRAHAM R.P.NO.744/2021 IN OP(MAC)23/2020 2 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON 13/12/2021 DELIVERED THE FOLLOWING: R.P.NO.744/2021 IN OP(MAC)23/2020 3 ## **O R D E R** The Review Petitioner- Insurance company, which is the third respondent in O.P(MAC) No.23/2020, has filed this review petition to review the judgment of this Court in O.P.(MAC)No.23/2020 dated 4/8/2021. 2. The original petitioners in the O.P.(MAC) No.23/2020 are the claimants in O.P.No.88/2009, pending before the Additional District Court, (MACT), Thrissur, in which they claimed compensation under section 166 of the Motor Vehicles Act in relation to the death of their predecessor. They received interim compensation under Section 140 of the Act, 1988. Thereafter, when the charge sheet was filed, on finding that it was adverse to the claims set up by the petitioners, they filed IA No.6850/2016 in O.P.(MV) No.88/2009 to convert the application to one under section 163A of the Motor Vehicles Act, 1988. This was dismissed by the learned Tribunal, which led to the challenge of that order in O.P.(MAC) No.23 of 2020. 3. The Insurance Company appeared and vehemently opposed the original petition on a premise that the petitioners had set up their claim under section 166 of the Motor Vehicles Act read with Section 140 of the Act. The monthly income claimed, was shown as Rs.5,000/-. They set up an application for interim compensation which was granted under section 140 of the Motor Vehicles Act. Hence, the application filed to convert the application under section 166 of the Motor Vehicles Act to one under section 163(A) of the Motor R.P.NO.744/2021 IN OP(MAC)23/2020 4 Vehicles Act was not sustainable. It was also contended that, in view of the claim of monthly income at Rs.5,000/-, the annual income exceeded the statutory limit of Rs.40,000/-. This court after detailed consideration held that an application is liable to be converted to one under section 163(A), in the light of the decision reported in O _**riental Insurance Company v. Dhanbaji Kanji Gadhvi[2011 (1) KLT 617,(SC )].**_ 4. This judgment is sought to be reviewed on the premise that this court committed a serious error in not considering the fact that an application under section 140 was set up and enjoyed the benefit under the Motor Vehicles Act. After having received it, they are not entitled to seek a conversion to section 163(A) from that of one under section 166, both of which stood on two different footings. The second limb of argument that was set up was that, the income shown in the application was Rs.5,000/- per month whereas the statutory limit in relation to claims under section 140 was Rs.40,000/- per year and hence, conversion to an application under section 163(A) was not permissible. 5. It seems that both the arguments were advanced before this court and specifically the claim in relation to the receipt of interim compensation under section 140 of the Act was considered and referred to in para 4 of the judgment. 6. Basically, this ground does not fall within the ambit of a review petition. However, in the interest of justice, I am inclined to consider both the arguments on merits also. 7. The precise contention of the learned counsel for the review petitioner was that, once a claim for interim compensation invoking under section 140 R.P.NO.744/2021 IN OP(MAC)23/2020 5 was granted, the claimant is barred from setting up a claim under section 163A. Section 163(B) gives an option to file claim in certain cases. It provides that where a person is entitled to claim compensation under Section 140 and section 163A, he shall file the claim under either of the said sections and not both. The purport of this, as held by the various judicial pronouncements, is that this will not stand in the way of converting an application under section 166 to one under section 163A. But, the only bar is that both the claims cannot be pursued at the same time. The learned counsel for the review petitioner invited the attention of this court to section 140 (5) proviso which provided that the amount of such compensation to be given under any other law shall be reduced from the amount of compensation payable under this section or under section 163A. The learned counsel contended that under the proviso to section 140 (5), it referred to any amount “payable under any other law”, not “under this law”, thereby excluding a claim under section 140 from its purview. It indirectly implied that once a claim under section 140 was made and amount received as interim compensation, conversion from section 166 to section 163A was not possible. . 8. The learned counsel specifically referred to the decision in _**Deepal Girishbhai Soni v. United India Insurance Co.Ltd.(2004 (2) KLT 395 (SC)**_ , wherein the scope of the above provision was considered. It was held that, claimant cannot pursue his remedies under section 163A and under section 166 simultaneously. One has to opt/select to go either for a proceeding under section 163A or under section 166, but not under both. Section 163A applies R.P.NO.744/2021 IN OP(MAC)23/2020 6 only to those whose annual income is upto 40,000/-. All other claims are to be required to be determined in terms of Chapter XII of the Act. The learned counsel further relied on the decision of this Court _**National Insurance Co.Ltd.v Jabbar (2007 (1) KLT 331)**_ , wherein a learned Single Judge of this Court held that a claimant cannot pursue his remedies simultaneously under Sections 163A and 166. Regarding the setting up of claim on merits under section 163A, the learned counsel placed reliance on the decision reported in _**New India Assurance Company Ltd. v. Vinod (2016 (3) KLT 817)**_ and _**National Insurance Co. Ltd. v. Aravindakshan (2016 (2) KLT 711)**_ . In New India Assurance Company Ltd. v. Vinod(supra),the Division Bench held that one who is the victim of his own action of rash and negligent driving of a motor vehicle cannot invoke section 163A of the Act for making a claim for compensation. However, National Insurance Co. Ltd. v. Aravindakshan (supra) holds the view that if a claim is not maintainable under section 163A, the parties are still at liberty to have the negligence on the part of the concerned party pleaded and proved seeking to sustain the claim based on principle of fault in terms of section 166 of the Motor Vehicles Act. 9. The second limb of argument of the learned counsel was that, to set up a claim under section 140, the annual income shall be within the cap of Rs.40,000/- per year. In the case at hand, the total income disclosed was Rs.5,000/- per month which exceeded the cap. 10. It was submitted by the learned counsel for the petitioner that he has filed an application for amendment to reduce the salary which was pending R.P.NO.744/2021 IN OP(MAC)23/2020 7 consideration before the Court below. In National Insurance Co.Ltd.v.Aravindakshan's case (supra), it was held that parties before the Tribunal cannot seek to fix a cap or ceiling to monthly income so as to bring it down to be dealt with under section 163A, if the actual income is higher than the maximum limit. Question as to what exactly is the actual income drawn in this case, is a matter within the domain of evidence. Hence, that decision cannot be brought in aid to this case. Probably, that may be an argument which can be advanced at the time of consideration of the amendment application. 11. Opposing the review petition, the learned counsel for the claimants relied on several decisions of the Supreme Court as well as this Court. The decision reported in _**Oriental Insurance Co.Ltd. v. Dhanbai Kanji Gadhvi (2011 (1) KLT 617(SC)**_ , was the decision relied on by this court while considering the original petition. Wherein it was held that, there is no prohibition against the claimant praying for compensation as per the structured formula after having filed a claim petition under section 166. It was held that claimant, on getting compensation under section 163A, cannot further proceed with petition filed under section 166 . A learned Single Judge of this Court in _**Sherifa Beevi v. Komu (2006 (4) KLT 857)**_ held that a claimant in an application under section 163A is entitled to amend the claim to be one under sections 140 & 166, the only bar was that there cannot a simultaneous claim under sections 140 and 163A or sections 163A & 166. Having appreciated the above case laws in the back ground of the legal propositions, I find no reason to review the judgment of this court both on R.P.NO.744/2021 IN OP(MAC)23/2020 8 merits as well as on the scope of review. The review petition fails and is accordingly dismissed. Sd/- **SUNIL THOMAS Judge** dpk