1.0 This appeal is directed against the judgementt and award dated 23.04.2009 passed by learned Motor Accident Claims Tribunal (Aux), 6th Fast Track Court, Rajkot in Motor Accident Claim Petition No. 535 of 2005, wherein the Tribunal has awarded a sum of Rs. 179500/- along with interest at the rate of 9% per annum from the date of application till realization and proportionate cost.
2.0 According to the claimants, on 08.04.2005 at about 6.30 p.m., Iqbalbhai Usmanbhai Khoraliya was going on his motor cycle No. GJ-3AQ-8480. When he reached near Village Vaghasiya on Wankaner-Morbi Nationaly Highway, the motor cycle slipped and as a result of that he sustained bodily injuries. He was admitted in the hospital where during the treatment he died. The legal heirs therefore filed the aforesaid claim petition under Section 163-A 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 the deceased himself was tort-feasor. The motor Cycle slipped and as a result of that accident had occurred and deceased sustained grievous bodily injuries. In spite 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 It is by now well settled law that application under Section 163-A 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 163-A 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 163-A cannot be disposed of in a summary manner without considering the issue of liability of the Insurance Company and also other issues.
5.0 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.
6.0 I have gone through the judgement of the Tribunal. The Tribunal has proceeded on the basis that under Section 163-A 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.
7.0 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 consider the same afresh in light of the discussion made hereinabove. The Tribunal shall hear and decide the matter as early as possible and in any case within a period of two years from the date of receipt 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.
8.0 It is clarified that this Court has not expressed any opinion on the merits of the case. The Appeal stands disposed of.
(K.S.JHAVERI, J.) niru* Top