1. Heard learned counsel for the Appellants and learned counsel for the Respondents.

2. The claimants are Appellants assailing the award dated 10.10.2017 passed by the learned District Judge- cum-1st M.A.C.T., Nayagarh in M.A.C. No.65 of 2013 by which the claim application filed was held to be not maintainable under Section 163(A) (163-A. Special provision as to payment of compensation on a structured formula basis- (1) Notwithstanding anything contained in this 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 of 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. Explanation: For the purposes of this Sub-section, “permanent disability” shall have the same meaning and extent as in the Workman’s Compensation Act, 1923. (2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or, permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living, by notification in the official Gazette, from time to time amend the Second Schedule. of the Motor Vehicles Act, 1988 as the income of the deceased was more than Rs.40,000/- per annum.

3. The LRs of the deceased- Pitabas Biswal filing the application under Section 163(A)1 of the Motor Vehicles Act claimed compensation of Rs.9,00,000/- on account of his death in the vehicular accident. To substantiate their claim it was inter alia stated in the claim petition that the deceased at the time of accident was getting a salary of Rs.3,300/- along with food allowance of Rs.150 per day.

4. The Insurance Company-Respondent No.2 (Opposite Party No.2) as well as the owner-Respondent No.1 (Opposite Party No.1) filed their written statement. It was the stand of the owner-Opposite Party No.1 that since the deceased was working as a helper cum co- driver and the vehicle being duly insured with Respondent No.2-Opposite Party No.2 (Insurer) he is not liable to pay any compensation and it is incumbent upon the insurance company to pay the compensation.

5. On the basis of the pleadings of the parties, the following three issues and an additional issue were framed;

                  “ISSUES

                  1.       Whether, the accident has taken place due to rash and negligent driving of the driver of the offending vehicle bearing registration No.ORO7H 6288 causing death of Pitabas Biswal?

                  2.       Whether, the petitioners are entitled to any compensation, if so, to what extent and from whom?

                  3.       To what relief, the petitioners are entitled to?

                  ADDL. ISSUE

                  4.       Whether, the application U/s.163(A) of M.V. Act, 1988 by the claimants is maintainable when the deceased had income more than Rs.40,000/- per annum?”

6. The claimants in order to substantiate their case examined two witnesses and also relied on the documentary evidences marked as Exts.1 to 7.

                  Neither oral nor documentary evidence was adduced on behalf of Respondent-Opposite Parties.

7. The learned Tribunal took up Additional Issue No.4 for consideration at the threshold.

8. Taking into account the stand of the Insurance Company-Respondent No.2 (Opposite Party No.2) that the claim application is not maintainable on two grounds i.e., the claimant has income of more than Rs.40,000/- and he is not the third party to file the claim application under the Motor Vehicles Act.

                  It is apt to note here that on a bare perusal of Additional Issue No. 4, it can be seen that the ground of the claim application being not maintainable, as allegedly the claimant is not a third party, was not formulated.

9. Learned counsel for the claimant-Appellants, Mr. Rath, submits that the impugned award is liable to be set aside since all the grounds on which the same has been rejected are untenable.

                  Per contra, the learned counsel for the Insurance Company, Mr. Satapathy supported the impugned judgment and the reasoning in arriving at such judgment.

10. The claim of the Appellants was not entertained on the following grounds by the learned Tribunal;

                  i.        The claim application at the instance of the appellants under section 163-A of the M.V Act is not maintainable as the annual income of the deceased is more than Rs.40,000/- as provided under the second schedule of the M.V Act.

                  ii.       Insurance policy issued by the Insurance Company (Res. No.2) does not cover the risk of any driver and helper as no extra premium has been taken for that purpose.

                  iii.       As the deceased having died in course of his employment, the claimants may claim compensation against the owner at the appropriate forum.

11. It was the finding of the learned Tribunal that the deceased, being the helper of the mini truck, was getting Rs. 3,300/- per month, and he was also getting Rs.150 per day towards his fooding allowance. And, adding to such fooding allowance, the deceased’s annual income was held to be more than Rs. 40,000/-. As such, the LRs cannot maintain the claim under Section 163(A)1 of the Motor Vehicles Act, 1988.

                  And to justify such finding, the learned Tribunal relied on the judgments of the Apex Court in the case of Deepal Girishbhai Sony v. United India Insurance Co. Ltd. (Deepal Girishbhai Soni v. United India Insurance Co. Ltd., (2004) 5 SCC 385) , National Insurance Company Ltd. V. Laxshmi Thappa (National Insurance Company Ltd. v. Lakshmi Thapa, 2014 SCC OnLine Gau 490; 2016 A.C.J. 111) and National Insurance Company Ltd. V. Arabindakshan and another (National Insurance Co. Ltd. v. Aravindakshan, 2016 SCC OnLine Ker 8836; 2016 A.C.J. 2849)

12. Apart from the above case laws referred and relied upon by the learned Tribunal, the learned counsel for the Respondent-Insurance Company, Mr. Satpathy, also placed reliance on the judgment of the Apex Court in the case of Kavita Devi and others v. Sunil Kumar and another (Kavita Devi v. Sunil Kumar, 2025 SCC OnLine SC 1639).

13. He also relied on the judgments in the case of Oriental Insurance Co. Ltd. Vrs. Shyamsundar Rohidas and others (Oriental Insurance Company Ltd. v. Shyamsundar Rohidas, 1999 SCC OnLine Ori 74; 2000(3)TAC290) and The Divisional Manager, New India Assurance Co. Ltd. Vrs. Manorama Devi and others (Divisional Manager, New India Assurance Co. Ltd. v. Manorama Devi, 2004 SCC OnLine Ori 64; 2004(II)OLR712; 2005(1)TAC544) to fortify his submission that fooding allowance forms part of the wages and therefore, there is no illegality in the assessment by the learned Tribunal that the income of the deceased was more than Rs.40,000/- per annum.

14. Learned counsel for the claimants, Mr. Rath relied on the judgments of the Apex Court in the case of Surekha and others vs. Branch Manager, National Insurance Co. Ltd. (Surekha v. National Insurance Co. Ltd., (2017) 15 SCC 579; 2017ACJ2389) and Divisional Manager, United India Insurance Co. Ltd. Vs. Panchanan Panigrahi and others (Divisional Manager, United India Insurance Co. Ltd. Vs. Panchanan Panigrahi, 2024(4)TAC273) and also the very order of the Apex Court on which much reliance is placed by the learned counsel for the Respondent in the case of Kavita Devi(Supra)5.

                  On a close scrutiny of the order of the Apex Court in the case of Kavita Devi(Supra)5,it is seen that the Apex Court quoted with approval paragraph-19 of its finding in National Insurance Co. Ltd. V. Indira Srivastava and others (National Insurance Co. Ltd. V. Indira Srivastava, (2008) 2 SCC 763) . The said paragraph-19 reads as under;

                  “19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted.”

                  (Emphasised)

15. On a bare perusal of the said paragraph, one has to arrive at the irresistible conclusion that the amount which is paid exclusively for the employee cannot be counted towards the benefit of the family and as such, cannot be included in quantification of total income for the purpose of assessment of compensation.

                  The use of the expression “contradistinguished” by the Apex Court, while dealing with the aspects of income exclusively meant for the individual vis-à-vis the computation of the monthly income of a family, has to be given its full play.

16. The decisions referred to by the learned Trial Court are distinguishable on facts inasmuch as, in the decisions relied upon by the learned Trial Court the nature of computation of allowance vis-à-vis the income of the family has not been discussed.

17. As such, this Court is persuaded to hold that fooding allowance of Rs.150 per day cannot be included towards computation of income of the deceased for quantification of compensation and the finding on this count by the learned Trial Court is set aside.

18. It is apt to note here that, in view of the dismissal of the claim application on account of the finding relating to Additional Issue No. 4, as quoted above, regarding the maintainability of the claim application under Section 163(A)  of the Motor Vehicles Act, the learned Tribunal did not proceed to return findings on the other issues.

19. Notwithstanding the same, since the learned counsels have addressed this Court on the quantum of compensation to be awarded and the liability of the Insurance Company to indemnify on account of the stand of the Insurance Company, this Court proceeds to adjudicate on the question of the liability of the Insurance Company and the quantum as well since the accident in question relates to the year 2012. And, in the considered view of this Court, it would be unjust to throw the claimants into the quagmire of further litigation, keeping in view that the legislation in question is a beneficial one.

20. Insurance policy was submitted during the course of hearing. A copy thereof is treated as a part of this order. The same is extracted hereunder;

                 

                  Copy   thereof has been served onthe learned counsel for the Insurance Company.

21. On a bare perusal of the same, it is seen that it is a comprehensive package policy which includes the carrying of the employees of the owner, not exceeding three in number.

Since the deceased was an employee of the owner, being the helper, the Insurance Company is liable to pay the compensation.

22.    As such, the compensation is quantified as under;

                  

23.    The amount, as quantified, shall be paid within a period of three months from the date of receipt/production of copy of the judgment by Respondent-Insurance Company.

                  The learned Tribunal shall apportion the compensation amongst the claimants.

                  The Claimants shall be liable to pay Court fee as per the rules.

                  Accordingly, the MACA stands disposed of. No costs.