Parulben Nareshbhai Rana vs Punjabhai Parsottamdas Rana (Died) & Ors.

Paresh Upadhyay, J

Challenge in this petition is made by the claimant, to the part of the order passed by the Motor Accident Claims Tribunal, Vadodara dated

15.09.2017, below Exh. 27, in Motor Accident Claim Petition No. 628 of 2011. By the impugned order, the Tribunal allowed the application of the

claimant to convert the claim petition from Section 163A to Section 166 of the Motor Vehicles Act, 1988, however while allowing it, a rider is put that,

for the purpose of deciding the claim amount, the amendment that the earning of the deceased was not Rs.40,000/- per annum, but it was Rs.7,000/-

per month, could not be accepted, since according to the Tribunal that would change the complexion of the matter. It is this second part of the order,

which is challenged by the claimant in this petition.

Learned advocate for the petitioner has submitted that the husband of the petitioner no. 1 had died in an accident and she, along with her minor son

and aged mother-in-law, approached the Tribunal. At the relevant time, it was claimed that, the compensation in accordance with law be paid to them.

It is submitted that during the pendency of the said claim petition, it was realized that, the claimants are entitled to more amount of compensation, since

the deceased was earning Rs. 7000/- per month. It is submitted that for the purpose of said amendment in the claim petition, it was advised that, an

application needs to be made to convert the claim petition from section 163A to section 166 of the Act, which was made. It is submitted that though

the said application is allowed, the rider as noted is put by the tribunal, which in substance amounts to rejecting the amendment application. It is

submitted that therefore this second part of the order which is impugned in this petition be set aside.

On the other hand, learned advocates for the respondent insurance companies Nos. 4 and 6 have opposed this petition. It is submitted on behalf of

both the insurance companies that the tribunal fell in error by allowing the application and it would ultimately increase the liability for the insurance

companies. Ms. Pathak, learned advocate for the respondent No. 6 has vehemently submitted that Article 137 of the Limitation Act part II provides

for limitation of 3 years, which would be applicable in this case and therefore the tribunal ought not to have entertained this application at all. It is

further submitted that, in view of the decision of the Supreme Court of India in the case of Purohit and Company V.s Khatoonbee and Ors reported in

AIR 2017 SC 1612, the application could not have been entertained. It is submitted that this application be dismissed

Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under.

4.1 The accident had taken place on 26.04.2011. It was a fatal accident. The widow, minor child and mother of the deceased i.e. mother-in-law of the

claimant No. 1 approached the Tribunal, at the relevant time itself, and the said proceedings are pending. The averments in the claim petition, which

are claimed to be as per the legal advise, are to the effect that, the application be entertained considering Rs.40,000/- as the annual income, so that the

application is within the four corners of Section 163A of the Act. During the pendency of the proceedings, when it is asserted on behalf of the widow

that, the income of the deceased was not Rs.40,000/- per annum but it was Rs.7000/- per month, that amendment could not have been rejected. For

the purpose of carrying out that amendment, the ceiling of Rs.40,000/- as stipulated under Section 163A would come in the way of the claimant. For

that purpose, appropriate application is made seeking permission to convert the claim petition from Section 163A to Section 166 of the Act. There was

no objection from any of the parties for that conversion. As a matter of fact, that conversion is neither contested nor the permission granted by the

Tribunal is challenged before this Court by any of the Insurance companies. This Court finds that the tribunal has not committed any error in allowing

the said application. The point for consideration before this Court is that, whether the tribunal was justified in putting the rider while allowing the said

application, that the amendment to the effect of monthly income of Rs. 7000/- can not be accepted. This Court finds that the tribunal fell in error by

passing self â€" contradictory order. The first part of the order is that the tribunal has permitted the conversion of the application from Section 163A to

Section 166 of the Act. The very purpose of the said conversion is that, the restriction of Rs.40,000/- per annum, as envisaged under section 163A

does not come in the way of the claimant. While allowing the said amendment, the tribunal at the same breath held that the amendment to the effect

that instead of Rs.40,000/- per annum Rs.7,000/- per month be not considered. In substance, it has negated the conversion of the application, which it

had allowed by that very order. It is the second part of the order which is challenged before this Court and this Court finds that to be unsustainable.

This petition therefore needs to be allowed. It is noted that the challenge is to that extent only.

4.2 So far the argument of Ms. Pathak, learned advocate for the respondent â€" Insurance Company that the period of limitation of 3 years would

come into play needs to be rejected for the reason that, it is not in dispute that the claim petition was filed at the relevant time. While rejecting this

argument, it is clarified that these observations be not construed as if the argument could be accepted when the claim petition is filed beyond the

period of three years. Since that is not the case in hand, that issue is not gone into by this Court. So far the decision of the Supreme Court of India in

the case of Purohit and Company (supra) is concerned, there can not be any dispute with regard to the proposition of law, however the said judgment

can not have any application in the facts of this case, since the Supreme Court was considering the case where the claim petition for the first time was

filed after the gap of 28 years. That is not the case in hand.

For the reasons recorded above, the following order is passed.

5.1 This petition is allowed.

5.2 The impugned order passed by the Motor Accident Claims Tribunal, Vadodara dated 15.09.2017, below Exh. 27, in Motor Accident Claim Petition

No. 628 of 2011 is modified to the extent that, the said application is allowed in toto, without any rider.