REPORTABLE

             IN THE SURPEME COURT OF INDIA CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL NO(s). 682 OF 2011                     (@ SLP (C) No.12743/2010)

  ORIENTAL INSURANCE CO.LTD.                        Appellant(s)

                VERSUS

  DHANBAI KANJI GADHVI & ORS.                      Respondent(s)

 O R D E R

Leave granted.

This appeal is directed against the judgment  

dated 15.1.2010 rendered by the learned Single Judge of  

the High Court of Gujarat at Ahmedabad in Special Civil  

Application No.9400 of 2006 by which the order dated  

23.12.2005 passed by the Motor Accident Claims Tribunal  

(MACT) Bhuj, Kachchh in M.A.C.P. No.759/97 permitting  

the respondents, who had already obtained compensation  

under Section 163A of the Motor Vehicles Act 1988 (`the  

Act' for short), to proceed with the application filed  

under section 166 of the Motor Vehicles Act 1988, is  

affirmed.

The respondents are the original claimants. On  

17.6.97, the deceased viz. Kanji Keshavbhai Gadhvi was  

riding his two wheeler i.e. Luna. When he reached near  

IFFCO, the driver of taxi bearing No.GJ-12-C-9484 who  

was  coming   from  the  opposite  direction  dashed the

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taxi with the Luna as result of which Kanjibhai lost his  

life. Therefore, the respondents   who  are   legal  

heirs  of  the  deceased respondent filed MACP No.759 of  

1997 under Section 166 of the Motor Vehicles Act against  

the driver and owner of the taxi as well as against the  

petitioner  who  is  insurer  of  the  taxi  and  claimed  

compensation  of  Rs.7,50,000/-.  The  respondents  had  

thereafter  filed  an  application  at  Exhibit  6  under  

section 163A of the Act and claimed compensation of Rs.  

3,93,500/- on the principle of no fault liability.

The Tribunal had partly allowed the application  

filed by the respondents under Section 163A of the Act  

and ordered the petitioner to pay a sum of Rs.2,65,500/-  

with 12% interest vide judgment dated 18.10.2000.  The  

case  of  the  petitioner  is  that  the  petitioner  had  

deposited  the  said  amount  and  the  respondents  have  

already  withdrawn  and  invested  the  amount  of  

compensation as directed by the Tribunal.       

The  present  petitioner  filed  an  application  

with a  prayer that the application filed under Section  

166  which  was  pending  be  rejected  in  view  of  the  

decision of this Court in  Oriental Insurance Co. Ltd.  

Vs. Hansrajbhai V. Kodala & Ors. (2001) 5 SCC 175.

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The Tribunal by order dated 25.6.2002 granted  

stay of further proceedings of the petition filed under  

Section  166  of  the  Act  till  further  orders.  In  the  

meanwhile, the petitioner challenged the award passed by  

the Tribunal under Section 163A of the Act by filing  

First Appeal No.3019 of 2007.  The  appeal was dismissed  

on the ground of delay.

The respondents thereafter filed an application  

with a prayer that they be permitted to proceed with the  

petition filed under Section 166 of the Motor Vehicles  

Act  and  they  were  ready  to  give  undertaking  to  give  

credit of the amount awarded to them as compensation in  

the claim petition filed under Section 163A of the Act.  

The Tribunal by an order dated 23.12.2005 permitted the  

respondents  to  proceed  with  the  petition  filed  under  

Section 166 of the Act. The Tribunal also directed that  

amount already disbursed in favour of the respondents  

and invested by them, pursuant to the award made under  

Section 163A shall be adjusted to the final award to be  

passed under Section 166 of the Motor Vehicles Act.

Feeling  aggrieved,  the  petitioner  preferred  

Special  Civil  Application  No.9400  of  2006  before  the  

High Court.  

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The  learned  Single  judge  of  the  High  Court  has  

rejected  the  same  by  judgment  dated  15.1.2010  giving  

rise to the instant appeal.

This Court has heard the learned counsel for  

the parties.

This Court has perused the impugned judgment of  

the High Court.  The reasons given by the  High Court  

for upholding permission granted by the Tribunal, to the  

respondents to proceed further with the petition filed  

under Section 166 of the  Act, read as under.

“After  hearing  and  on  perusal  of  the  record and from the scheme of the Act, it  is clear that proceedings under Sections  163A  and  166  of  the  Act  i.e.  both  proceedings are permissible.  In my view,  claimant  can  file  both  the  proceedings  and opt for either of proceedings.  The  only  condition  is  that  application  for  proceeding  under  section  166  should  be  filed before the award is passed .  Here,  in this case, the proceedings were filed  before the award is passed”.

On consideration of the object of section 163A  

of the Act which was inserted by Section 51 of the Act  

54  of  1994  w.e.f.  14-11-1994,  and  the  non-obstante  

clause  with  which  sub-section  (1)  of  Sec.  163A  

commences, it is manifest that the legislature did not  

intend  to  prevent  the   claimant   from   getting  

compensation  as  per  the

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structured formula merely because in his original claim  

petition  he had prayed for compensation on the basis of  

“fault liability” principle.  There is no prohibition in  

any provision of the Motor Vehicles Act 1988 against the  

claimant praying for compensation as per the structured  

formula  after  having  filed  a  claim  petition  under  

section 166 of the Act.  Therefore, this Court finds  

that the respondents were perfectly justified in making  

an application at Exhibit 6 in MACP  No.759 of 1997  

which was filed under Section 166 of the Act and praying  

the Tribunal to award compensation to them on the basis  

of the structured formula mentioned in Section 163A of  

the Act. This Court further finds that the Tribunal did  

not  commit  any  error  in  entertaining  the  said  

application  and  awarding  a  sum   of  Rs.2,65,500/-  as  

compensation to the respondents under Section 136A of  

the Act.  

However, in Deepal Girishbhai Soni & Ors.Vs. United  

India Insurance Co. Ltd., Baroda (2004) 5 SCC 385, the  

question which was considered by a three Judge Bench of  

this Court was whether a proceeding under Section 163A  

of the Motor Vehicles Act, 1988 is a final proceeding,  

by  reason  whereof,  the  claimant who has been granted

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compensation  under  Section  163A,  is  debarred  from  

proceeding with any further claims on the basis of fault  

liability in terms of Section 166. After considering the  

scheme envisaged by Section 163A of the Act, it is held  

in the said case that Parliament intended to lay down a  

comprehensive  scheme  for  the  purpose  of  grant  of  

adequate compensation to a section of victims who would  

require the amount of compensation without fighting any  

protracted litigation. What is ruled therein is that the  

compensation determined  and paid under Section 163A of  

the  Act  is  final  and  not  an  interim  one.  The  clear  

proposition of law which emerges from the decision of  

this Court in Deepal G. Soni (supra)  is that the remedy  

for payment of compensation both under Sections 163A and  

166  being  final  and  independent  of  each  other  as  

statutorily  provided,  a  claimant  cannot  pursue  his  

remedies thereunder simultaneously. As explained by this  

Court  in  the  said  decision,  a  claimant,  thus,  must  

opt/elect to go either for a proceeding under Section  

163A or under Section 166 of the Act, but not under  

both.  

Applying the principle laid down in Deepal Soni  

(supra)  to  the  facts  of the case, it will have to be

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held that the respondents having obtained compensation,  

finally determined under Section 163A of the Act are  

precluded  from  proceeding  further  with  the  petition  

filed  under  Section  166  of  the  Act.  The  exception  

mentioned by the learned Single Judge in the impugned  

judgment that a petition under Section 166 of the Act  

can be proceeded further if it is filed before passing  

of an award passed under Section 163A of the Act is not  

supported by the scheme envisaged under Sections 163A  

and 166 of the Act and is contrary to the principle of  

law  laid  down  by  this  Court  in  Deepal  Soni's  case.  

Therefore,  this  Court  is  of  the  opinion  that  the  

impugned judgment of the High Court upholding the order  

passed  by  the  Tribunal  to  permit  the  respondents  to  

proceed further with the petition filed under Section  

166 of the Act cannot be sustained and will have to be  

set aside.

For the foregoing reasons, the appeal succeeds.  

The order of the Tribunal dated 23.12.2005 allowing the  

respondents  to  proceed  with  the  petition  filed  under  

Section  166  of  the  Motor  Vehicles  Act,  1988  on  the  

certain  terms  and conditions mentioned therein and the

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impugned judgment of the High Court upholding order of  

the Tribunal are hereby set aside.  

The appeal accordingly stands disposed of  

.................J. (J.M. PANCHAL)

NEW DELHI          .................J. JANUARY 17, 2011      (H. L. GOKHALE)