# Chandigarh v. Niciolletta Rohtagi & others reported in - **Citation:** (2003) 1 ILRA 215 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2003-03-04 - **Case number:** First Appeal From Order No. 528 of 2003 - **Bench:** S.P. Srivastava, M.P. Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandigarh-v-niciolletta-rohtagi-others-reported-in-39967 - **Pages:** 4 ## Headnote Motor Vehicle Act 1988- Section 163-A - Compensation jurisdiction of claim Tribunal- permanent diablement- compensation awarded by the Tribunal- Challenge made on the ground- under workmen compensation Act- the amount of award can be given can not be exceed by the Tribunal in motor accident- held- cannot be limited but ought to be just amount has to be determined not withstanding any thing contained in other law for the time being in force. Held- Para 8 The use of the non abstante clause in Section 163-A of the Motor Vehicles Act is quite significant. It shows that the amount of compensation determined in the proceedings under the Motor Vehicles Act which ought to be just cannot be limited to any amount as specified in the Workmen's Compensation Act as the amount contemplated under Section 163-A of the Motor Vehicle Act has to be determined notwithstanding any thing contained in any other law for the time being in force. (B)Motor Vehicle Act 1988- Section 170- Permission for filing Appeal- not taken- defence taken that the permission was rejected- no material brought on record- regarding challenge of rejection order- held Appeal not sustainable. Held- Para 14 In the absence of the requisite permission under Section 170 of the Motor Vehicles Act, the claim of the Insurer- appellant against the quantum of compensation determined by the Motor Accident Claims Tribunal is not sustainable in law and this aspect of the matter stands amply clarified from the observations made by the Hon'ble Supreme Court in its decision in Civil Appeal No. 4292 of 2002. National Insurance Co. Ltd. Chandigarh vs. Niciolletta Rohtagi & others reported in JT 2002 (7) SC 251. The ratio of the aforesaid decision stands squarely attracted in the circumstances of the present case. Case law discussed: 200(2) TAC-213 JT 2002 (7) SC-251 http://www.allahabadhighcourt.nic.in 216 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 ## Text http://www.allahabadhighcourt.nic.in 1All] Om Prakash Srivastava V. State of U.P. and another 215 from 15.12.1993 but his prayer is that he should be regularised from 3.7.1981 when his juniors were regularized. 3. In our opinion the prayer of the petitioner is justified. But for the adverse entry for the year 1974-75 the petitioner would have been regularised with effect from 3.7.1981 when his juniors were regularised. 4. We, therefore, allow this writ petition and direct that the petitioner should be regularised with effect from 3.7.1981 and be granted all the consequential benefit within a period of two months from the date of production of a certified copy of this order before the authority concerned. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 4.3.2003 BEFORE THE HON'BLE S.P. SRIVASTAVA, J. THE HON'BLE M.P. SINGH, J. First Appeal From Order No. 528 of 2003 National Insurance Company Ltd. ...Appellant Versus Smt. Urmila Devi and others ...Respondents Counsel for the Appellant: Sri Arvind Kumar Counsel for the Respondents: Sri B.P. Verma Motor Vehicle Act 1988- Section 163-A - Compensation jurisdiction of claim Tribunal- permanent diablement- compensation awarded by the Tribunal- Challenge made on the ground- under workmen compensation Act- the amount of award can be given can not be exceed by the Tribunal in motor accident- held- cannot be limited but ought to be just amount has to be determined not withstanding any thing contained in other law for the time being in force. Held- Para 8 The use of the non abstante clause in Section 163-A of the Motor Vehicles Act is quite significant. It shows that the amount of compensation determined in the proceedings under the Motor Vehicles Act which ought to be just cannot be limited to any amount as specified in the Workmen's Compensation Act as the amount contemplated under Section 163-A of the Motor Vehicle Act has to be determined notwithstanding any thing contained in any other law for the time being in force. (B)Motor Vehicle Act 1988- Section 170- Permission for filing Appeal- not taken- defence taken that the permission was rejected- no material brought on record- regarding challenge of rejection order- held Appeal not sustainable. Held- Para 14 In the absence of the requisite permission under Section 170 of the Motor Vehicles Act, the claim of the Insurer- appellant against the quantum of compensation determined by the Motor Accident Claims Tribunal is not sustainable in law and this aspect of the matter stands amply clarified from the observations made by the Hon'ble Supreme Court in its decision in Civil Appeal No. 4292 of 2002. National Insurance Co. Ltd. Chandigarh vs. Niciolletta Rohtagi & others reported in JT 2002 (7) SC 251. The ratio of the aforesaid decision stands squarely attracted in the circumstances of the present case. Case law discussed: 200(2) TAC-213 JT 2002 (7) SC-251 http://www.allahabadhighcourt.nic.in 216 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 (Delivered by Hon'ble S.P. Srivastava, J.) 1. Heard the learned counsel for the Insurer- Appellant and Sri B.P. Verma , learned counsel for the claimants- respondents. 2. The appellant has filed the present appeal under Section 173 of the Motor Vehicles Act feeling aggrieved by the award of an amount of Rs. 4,08,000/- determined as just compensation which the dependants of the deceased Shyamvir sing @ Pappu were found entitled to on account of his untimely death in an accident involving the offending motor vehicle. The deceased Shyamvir Singh @ Pappu was claimed to be the cleaner - driver of the offending motor vehicle which had been insured by the appellant covering the risk. 3. It may be noticed that the application filed by the dependents of the deceased Shyamvir Singh @ Pappu had been filed under Section 163-A of the Motor Vehicles Act. 4. The Motor Accident Claims Tribunal vide the impugned judgement and award after carefully considering the evidence brought on record by the parties, had come to the conclusion that on the date of the death Shyamvir Singh @ Pappu was aged about 34 years. It was also found that untimely death of Shyamvir Singh had been caused on account of the accident involving the motor vehicle which was insured by the present appellant covering the risk. The tribunal returned a finding against the appellant holding that the deceased was having an income of Rs.3,000/- per month. After calculating the amount of dependency excluding 1/3 of the amount of Rs.3,000/- which was found to have been spent by the deceased on himself the annual dependency was held to be Rs.24,000/- per annum. Applying the multiplier of 17, the Tribunal came to the conclusion that the dependents of the deceased were entitled to an amount of Rs.4,08,000/-. 5. Learned counsel for the appellant has strenuously urged that taking into consideration the nature of the pleadings it was apparent that the deceased had been claiming the compensation on the ground that the deceased had met his death while in the course of employment and consequently the provisions contained in the Workmen's Compensation Act were attracted. The contention is that in such a situation the amount of compensation cannot exceed the amount which a workman can get in the proceedings under the Workmen's Compensation Act. 6. Learned counsel for the claimants- respondents, however, has urged that the Insurer had issued a policy covering the risk after taking a large amount of premium. The learned counsel for the claimants- respondents had produced the cover note issued by the present appellant as well as the insurance policy which shows that an amount of Rs.4,706/- was accepted as premium by the Insurer. This premium covered the risk of driver and cleaner both. It is further urged that there is no provision under the Motor Vehicles Act which can restrict the award of compensation to an amount as admissible under the provisions of the Workmen's Compensation Act. 7. The provisions contained in Section 167 of the Motor Vehicles Act http://www.allahabadhighcourt.nic.in 1All] National Insurance Co. Ltd. V. Smt. Urmila Devi and others 217 stipulate that Notwithstanding anything contained in the Workmen's Compensation Act, 1923 where the death of or bodily injury to, any person gives rise to a claim for compensation under Motor Vehicles Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. It is, therefore, obvious that the option is left to the person entitled to compensation to choose whether he would seek the remedy available under the Motor Vehicles Act or the Workmen's Compensation Act. The provisions contained in Section 168 of the Motor Vehicles Act stipulate that Motor Accident Claim Tribunal has to determine the amount of compensation which appears to it to be just. 8. In the present case the application seeking compensation had been filed specifically under section 163-A of the Motor Vehicles. The provisions contained in Section 163-A indicates that notwithstanding anything contained in Motor Vehicles Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the second schedule, to the legal heirs or the victim, as the case may be. The use of the non abstante clause in Section 163-A of the Motor Vehicles Act is quite significant. It shows that the amount of compensation determined in the proceedings under the Motor Vehicles Act which ought to be just cannot be limited to any amount as specified in the Workmen's Compensation Act as the amount contemplated under Section 163-A of the Motor Vehicle Act has to be determined notwithstanding any thing contained in any other law for the time being in force. 9. In the aforesaid circumstances it is obvious that the jurisdiction of the Motor Vehicle Accident Claims Tribunal could not be taken to be abridged or limited in any manner by the provisions contained in the Workmen's Compensation Act. 10. Learned counsel for the claimants- respondents in support of his submissions has placed reliance upon a decision of the Apex Court in the case of Smt. Rita Devi and others vs. New India Assurance Co. Ltd. and another, reported in 2000 (2) TAC 213. The aforesaid case also involved a controversy in regard to the claim raised by a workman who had died in the course of employment as a driver of a motor vehicle and the application seeking compensation had been filed under the provisions of Section 163-A of the Motor Vehicles Act. 11. The Apex Court in the aforesaid decision in the case of Smt. Rita Devi (supra) reversing the decision of the High Court had upheld the decision of the Motor Accident Claims Tribunal allowing the application of the dependents of the deceased. 12. The ratio of the aforesaid decision also indicates that the jurisdiction of the Motor Accident Claims Tribunal while determining the just compensation is not limited or abridged by the provisions of the Workmen's Compensation Act. http://www.allahabadhighcourt.nic.in 218 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 13. There is yet other aspect of the matter which cannot be lost sight of . In the present case the Insurer had not obtained the permission envisaged under Section 170 of the Motor Vehicles Act. The contention of the learned counsel for the claimant- respondent is that his application had been filed for the purpose but had been rejected. A perusal of the memo of appeal indicates that the Insurer has not challenged the order denying permission under Section 170 of the Act. In fact there is no such grievance raised. 14. In the absence of the requisite permission under Section 170 of the; Motor Vehicles Act, the claim of the Insurer- appellant against the quantum of compensation determined by the Motor Accident Claims Tribunal is not sustainable in law and this aspect of the matter stands amply clarified from the observations made by the Hon'ble Supreme Court in its decision in Civil Appeal No. 4292 of 2002. National Insurance Co. Ltd. Chandigarh vs. Niciolletta Rohtagi & others reported in JT 2002 (7) SC 251. The ratio of the aforesaid decision stands squarely attracted in the circumstances of the present case. 15. The learned counsel for the appellant has tried to assail the findings returned by the Motor Accident Claims Tribunal against it but has not been able to demonstrate that the said findings can be taken to be suffering from any such legal infirmity which may justify an interference by this Court. These findings are amply supported and warranted by the evidence and the material brought on record. 16. This appeal is devoid of merit which deserves to be and is hereby dismissed. 17. The amount of Rs.25,000/- deposited in this Court by the appellant under Section 173 of the Motor Vehicles Act be remitted to the Motor Accident Claims Tribunal concerned within one month from the date an application is filed by the appellant for the purpose so that it may be adjusted against the amount required to be deposited under this order. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.2.2003 BEFORE THE HON'BLE SUNIL AMBWANI, J. Civil Misc. Writ Petition No. 1068 of 2003 United India Insurance Co. Ltd. ...Petitioner Versus Additional District & Sessions Judge, Muzaffarnagar and others...Respondents Counsel for the Petitioner: Sri Saurabh Srivastava Counsel for the Respondents: S.C. Motor Accident Claim Tribunal Rules 1967, Rule 206- Claim petition filed- otherwise good for hearing- whether can it be dismissed in default ? held- 'No' - if dismissed - shall be treated to be filed as on the initial date of filing. Held-Para 10 Therefore, be unjust and unfair where a claim, which is prima facie found to be valid for consideration, be dismissed for default and thereafter remedy of restoration, or restoration of restoration