1.0 This appeal is directed against the judgementt and award dated 04.04.2009 passed by learned Motor Accident Claims Tribunal (Main), Junagadh in Motor Accident Claim Petition No. 194 of 2005, wherein the Tribunal has awarded a sum of Rs. 259500/ along with interest at the rate of 9% per annum from the date of application till realization.
2.0 On 04.03.2004, Parbatbhai Ramdebhai Karangiya was going on his motor cycle No. GJ3AF764. He was on VanthaliKeshod Highway as he was returning to his home. At that time, the motor cycle slipped and turned turtle and fell into the ditch. He received serious head injuries and other injuries and he died. The legal heirs therefore filed the aforesaid claim petition under Section 163A of the Motor Vehicles Act before the Tribunal wherein the impugned award came to be passed which is challenged in the present appeal.
3.0 The main contention raised by learned Advocate for the appellant is that learned Tribunal has not decided the issue of negligence and held that since the petition is under Section 163A of the M.V. Act, the issue of negligence is not to be answered and only involvement of the vehicle is to be considered and therefore, the Tribunal has not decided the issue of negligence in detail. It is further contended by the learned advocate for the appellant that the deceased was returning to his home and at the place of accident the motor cycle slipped and turtled and fell into the ditch. Inspite of the aforesaid fact, the learned Tribunal has committed error in holding that the insurance company is liable to pay compensation to the claimants. He further submitted that it is open to the owner or insurance company, as the case may be to defeat a claim under Section 163A of the Act by pleading and establishing a 'fault' ground.
4.0 Learned advocate for the appellant further contended that the deceased was not holding valid and effective driving licence to drive the insured motorcycle No. GJ3AF764; that learned Tribunal failed to consider that the deceased was holding licence to drive LMV ( Light Motor Vehicle)HGV (heavy Goos Vehicle)HPV ( Heavy Passenger Vehicles). The motor cycle would not get covered under any of the above categories and therefore, learned Tribunal erred in coming to the conclusion that the category of Light Motor Vehicle would include a motorcycle.
5.0 Learned advocate for the respondent contended that the additional premium was paid and risk of the pillion rider as well as scooter is covered.
6.0 It is by now well settled law that application under Section 163A of the Motor Vehicles Act cannot be treated at par with an application under section 140 of the Act. Under section 140 of the Act only fixed compensation is payable whereas it is not the case in an application under Section 163A of the Act. As per the law laid down by the Apex Court, award under Section 163A is an alternative to an award under Section 166 of the Act and therefore application under Section 163A cannot be disposed of in a summary manner without considering the issue of liability of the Insurance Company and also other issues.
7.0 In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84= 2012 (2) SCC 356, it is held that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163A of the Act by pleading and establishing a 'fault' ground.
8.0 I have gone through the judgement of the Tribunal. The Tribunal has proceeded on the basis that under Section 163A of the Act involvement of particular identified vehicle is only required to be proved. It appears that the Tribunal has not considered the facts and law mentioned hereinabove. Resultantly, the Tribunal is required to reconsider the matter in view of the aforesaid facts and ratio laid down by the Apex Court.
9.0 In the premises aforesaid, the judgement and award impugned in the present appeal is hereby quashed and set aside. The matter is remanded to the Tribunal to decide afresh after considering all the evidence and the discussion made hereinabove. It will be open to the parties to lead their evidence to support the case. The Tribunal shall hear the claim petition and dispose of the same as expeditiously as possible and preferably within a period of two years from the date of writ of this order. In the meanwhile the awarded amount shall be invested in a fixed deposit by the Tribunal with any nationalized bank in the name of the Nazir of the Tribunal and the receipt thereof shall be retained with the Tribunal. The interest that may be accrued on the said deposit shall not be disbursed. Ultimately, the amount shall be disbursed as per the final decision of the Tribunal and the amount, if already disbursed, shall be given set off.
10.0 It is clarified that Court has not expressed any opinion on the merits of the case. The Appeal stands disposed of.
niru* (K.S.JHAVERI, J.)