Jharkhand High Court
Alimuddin Ansari vs Mr. Om Prakash Kumar on 31 July, 2025
2025:JHHC:21218
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 356 of 2016
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1. Alimuddin Ansari, son of Late Akbar Hussain,
2. Md. Almin Ansari, son of Alimuddin Ansari
3. Azamtullah Ansari, son of Alimuddin Ansari,
4. Khusbu Rani, daughter of Alimuddin Ansari
5. Gulabasa Rani, D/o Alimuddin Ansari (minor aged about 16
years)
6. Asif Ali, son of Sri Alimuddin Ansari (minor aged about 10
years)
(Appellant Nos. 5 and 6 being minors are represented through
their father and natural guardian the Appellant no. 1), Above
all resident of Katamkuli, P.O. - Katamkulu, P.S. Pithoria,
District - Ranchi ... ... Appellants
Versus
1. Mr. Om Prakash Kumar, son of Dhaneshwar Mahto, resident of
Katamkuli, P.O. - Katamkulu, P.S. - Pithoria, District - Ranchi
2. Bajaj Allianz General Insurance Co. Ltd. at 5th Floor Mahabir
Tower, Main Road, P.O. - G.P.O., Ranchi, P.S. Kotwali, District
Ranchi. ... ... Respondents
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For the Appellants : Mr. Ravi Ranjan, Advocate
: Mr. Kaushalendra Prasad, Advocate
For the Res. No. 1 : Mr. Vivek Kumar Sharma, Advocate
For the Res. No. 2 : Mr. Alok Lal, Advocate
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PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 29.04.2025 Pronounced on 31.07.2025
1. Heard Mr. Ravi Ranjan, learned counsel appearing on
behalf of the appellants/claimants and Mr. Vivek Kumar
Sharma, learned counsel appearing on behalf of the
respondent no. 1(owner) as well as Mr. Alok Lal, learned
counsel appearing on behalf of the respondent no. 2- Bajaj
Allianz General Insurance Co. Ltd.
2. The instant miscellaneous appeal is preferred against the
judgment and award dated 21.04.2016 passed by learned
Presiding Officer-cum-Motor Vehicle Accident Claims Tribunal,
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Ranchi in Compensation Case No. 216 of 2011 whereby and
whereunder, the Tribunal has awarded a sum of
Rs. 5,13,000/- with interest thereon at the rate of 9% per
annum from the date of filing the case till its realization, in an
application filed under Section 163-A of Motor Vehicle Act,
1988 and directed the insurance company to pay the
compensation amount within a month to the
appellants/claimants from the date of award.
3. The brief facts of the case is that on 08.02.2008 while
the deceased-Hazara Khatoon along with her children and
relatives were returning to their place from Lohardaga by
tempo having Registration No. JH-01-S-0875, which was hit by
unknown Bolero Jeep near Chanho petrol pump, as it was
being driven in a rash and negligent manner and the above
said Hazara Khatoon succumbed to the injuries sustained in
the said motor vehicle accident.
Thereafter, husband and children of deceased-Hazara
Khatoon filed a claim application under Section 163-A of Motor
Vehicle Act, 1988 before the Tribunal stating therein that
deceased was selling vegetables and her annual income was
Rs. 39,000/- per annum. It is required to be noted that, for the
above stated incident, an FIR being Chanho P. S. Case No. 11
of 2008 under Sections 279/304A of IPC has also been got
registered.
4. The record of the Tribunal reveals that initially the
seven issues were framed vide order dated 11.03.2014 but the
Tribunal vide its order dated 02.04.2016 recorded that since
the claim application under Section 163-A of Motor Vehicle
Act, 1988 has been filed for compensation but the issues
framed were not as per Section 163-A of Motor Vehicle Act,
1988 rather, it is as per Section 166 of Motor Vehicle Act,
1988, therefore, the Tribunal recast the issues in the presence
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of both the parties. Records further reveal that there was no
objection from either of the sides.
5. During enquiry, appellants/claimants has brought on
record evidences of three witnesses, they are A.W. – 1, Ajharul
Haque, nephew of the deceased, A.W. – 2 Alimuddin Ansari,
husband of the deceased (claimant/applicant No. 1) and A.W.
3, Moulana Abdul Hasib who is an eye-witness as a co-
passenger in the tempo involved in the accident. The above-
said three enquiry witnesses on behalf of appellants/claimants
reiterated the case of appellants/claimants A.W. – 2,
Allimuddin Ansari has stated in his examination-in-chief that
his wife, since deceased, was doing the business of vegetable
and used to earn Rs. 200-250/- per day.
The Tribunal considering the income as contended in
the claim application considered the annual income of the
deceased as Rs. 39,000/- per annum and thereafter, awarded
compensation under different heads to the tune of Rs.
5,13,000/- and interest of 9% was also allowed from date of
filing of the claim case i.e. from 15.07.2011 till realization of
the said amount.
6. Learned counsel for the appellants/claimants confined
his argument to the extent that as in the evidence of A.W. – 2,
Allimuddin Ansari, it has come on record that deceased was
getting Rs. 200-250/- per day from the business of vegetable,
therefore, Rs. 75,000/- was to be considered as annual income
of the deceased and the matter should be decided under
Section 166 of Motor Vehicle Act, 1988 and not under Section
163-A of Motor Vehicle Act, 1988 because the income is
definitely more than Rs. 40,000/- and appellants/claimants
have also brought on record the negligence on the part of the
driver of the vehicle, which caused the accident and resulted
in the death of the deceased-Hazara Khatoon.
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7. Learned counsel further pointed out that the Tribunal
ought to have considered aforesaid aspect and would have
awarded compensation under Section 166 of Motor Vehicle
Act, 1988.
8. Learned counsel for the appellants/claimants has also
relied upon the judgment of the Division Bench of this High
Court in the case of Sumiya Devi and Others vs. Sri Bir
Marketing Services and Others reported in 2008 ACJ 2833.
9. Per contra, learned counsel appearing on behalf of
respondent no. 2-Insurance Company-Bajaj Allianz General
Insurance Company Limited pointed out that it is the
appellants/claimants who have chosen to bring their case
under Section 163-A of Motor Vehicle Act, 1988 and
appellants/claimants cannot and should not be allowed to
blow hot and cold by changing their choice by asking the
Tribunal or the Appellate Court to consider its case under
Section 166 and not under Section 163 of the Motor Vehicle
Act, 1988.
10. After hearing both the sides and perusing the
record of tribunal, it transpires that, it is the
appellants/claimants who have filed an application under
Section 163-A of Motor Vehicle Act, 1988 stating therein the
annual income of deceased-Hazara Khatoon Rs. 39,000/-.
During enquiry before the Tribunal A.W. – 2, Allimuddin
Ansari, husband of the deceased filed an affidavit by way of his
examination-in-chief, stating therein that income of the
deceased from the vegetable business was Rs. 200-250/- per
day. A.W. – 2, Allimuddin Ansari, has nowhere stated in his
testimony that deceased was doing the vegetable
business/selling vegetables on each and every day of the
month, so from this angle also, it is difficult for this Court to
consider the submission of the learned counsel for the
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appellants/claimants that income of the deceased was Rs.
75,000/- per annum and too when the claim application
under Section 163-A of the Motor Vehicle Act, 1988 speaks
about the annual income of deceased as Rs. 39,000/- per
annum.
11. The case records further reveals that issues in the
present matter has been recasted on account of fact that
initially it was casted inadvertently, considering the claim
application under Section 166 of Motor Vehicle Act, 1988 but
later on, when it was realized by the Tribunal that the claim
application has been filed under Section 163-A of Motor
Vehicle Act, 1988, the same was recasted on 02.04.2016 in the
presence of both the parties including appellants/claimants
but appellants/claimants had not objected the same. Even no
such plea regarding adjudicating the claim application under
Section 166 of Motor Vehicle Act, 1988 has ever been made by
the appellants/claimants before the Tribunal, rather matter
was heard finally on 02.04.2016 itself by the Tribunal and
thereafter posted for judgment. In the appellate stage the
appellants/claimants cannot be allowed to agitate an issue
which has not been agitated before the learned tribunal in
view of judgment rendered by the Hon’ble Supreme Court in
the case of Ramchandra v. United India Insurance Co.
Ltd., reported in (2013) 12 SCC 84, which reads hereunder:-
“26. …………. Thus, this plea was never put to test or gone into by the Motor
Accidents Claims Tribunal since the Insurance Company neither took this plea nor
adduced any evidence to that effect so as to give a cause to the High Court to accept this
plea of the Insurance Company straightaway at the appellate stage.”
12. As far as, judgment relied upon by the
claimants/appellants is concerned, the facts of the Sumiya
Devi‘s case (supra) are quite different from those of the
present case. The appellants/claimants in the said case has
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stated the annual income of the deceased as Rs. 71,280/- as
per the income tax assessment of the year 2001-2002 and
learned tribunal also recorded a finding that annual income of
the deceased was Rs. 72,000/-. Whereas in the present case in
pleading annual income of deceased has been shown as Rs.
39,000/-per annum and no piece of paper has been brought
on record qua income of the deceased to tune of Rs. 75,000/-
per annum. Therefore, ratio of Sumiya Devi‘s (supra) is not
applicable in the present case.
13. It is apposite to refer herein the judgment rendered by
the Hon’ble Apex Court in the case Deepal Girishbhai Soni v.
United India Insurance Co. Ltd., reported in (2004) 5 SCC
385 which arose out of a reference made for a decision on the
correctness of the view expressed in Oriental Insurance Co.
Ltd. v. Hansrajbhai V. Kodala reported in (2001) 5 SCC
175 that determination of compensation in a proceeding
under Section 163-A of the Motor Vehicle Act is final and
further proceedings under section 166 Motor Vehicle Act is
barred. A three judge bench in the case of Deepal Girishbhai
Soni (Supra) has held that it is open for the claimant to agitate
for final compensation by resort to the provisions of section
166 or section 163-A of Motor Vehicle Act. Section 163-A
Motor Vehicle Act provides for the final award based on
structured formula based on the provisions of the second
schedule of section 163-A and section 166 of the Motor Vehicle
Act being final and independent of each other and a claimant
cannot pursue his remedies thereunder simultaneously.
Relevant Para of the judgment reads hereunder:-
57. We, therefore, are of the opinion that the remedy for payment
of compensation both under Sections 163-A and 166 being final and
independent of each other as statutorily provided, a claimant cannot
pursue his remedies thereunder simultaneously. One, thus, must
opt/elect to go either for a proceeding under Section 163-A or under
Section 166 of the Act, but not under both.
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In view of aforesaid discussions and legal proposition,
this Court is of considered view that claim of
appellants/claimants cannot be considered under Section 166
of Motor Vehicle Act, 1988.
14. As far as computation of compensation is concerned,
it appears that it is not strictly in consonance with Scheduled
– II of Motor Vehicle Act, 1988 rather, the Tribunal has
computed the compensation as per the judgment of the
Hon’ble Supreme Court in the case of Smt. Sarla Verma vs.
DTC reported in (2009) 6 SCC 121.
15. This Court finds that, had the compensation been
computed as per schedule, then the awarded amount of
compensation would definitely be less than what has been
awarded by the Tribunal, but as the appellants/claimants
approached this Court in an appeal for enhancement of
quantum of compensation by invoking Section 173 of Motor
Vehicle Act, 1988. This Court has already held in preceding
paragraphs that the application for claim cannot and should
not be considered under Section 166 of Motor Vehicle Act,
1988. But at the same time, the quantum of compensation
awarded should also not be disturb in view of the judgment of
Hon’ble Supreme Court in the case of Ranjhana Prakash
and others vs. Divisional Manager and Another reported in
(2011) 14 SCC 639, which reads as herein:-
“8. Where an appeal is filed challenging the quantum of compensation,
irrespective of who files the appeal, the appropriate course for the High
Court is to examine the facts and by applying the relevant principles,
determine the just compensation. If the compensation determined by it is
higher than the compensation awarded by the Tribunal, the High Court
will allow the appeal, if it is by the claimants and dismiss the appeal, if it
is by the owner/insurer. Similarly, if the compensation determined by the
High Court is lesser than the compensation awarded by the Tribunal, the
High Court will dismiss any appeal by the claimants for enhancement, but
allow any appeal by the owner/insurer for reduction. The High Court
cannot obviously increase the compensation in an appeal by the
owner/insurer for reducing the compensation, nor can it reduce the7
2025:JHHC:21218compensation in an appeal by the claimants seeking enhancement of
compensation”
16. In view of the aforesaid discussions and legal
proposition, this Court does not find any merit in the instant
appeal. Hence, the instant miscellaneous appeal is, hereby,
dismissed.
17. Respondent No. 2, Bajaj Allianz General Insurance Co.
Ltd., is directed to indemnify the awarded amount to the
claimants within a period of 45 days from today. In case any
part of the awarded amount has already been paid, the
respondent shall pay the remaining balance.
18. Let the lower court records be sent back to the
concerned tribunal.
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 31st day of July, 2025
Umesh/-A.F.R.
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