1. This appeal is directed against the judgment and award dated 26.02.2009 passed by learned Motor Accident Claims Tribunal (Aux), Ahmedabad City in Motor Accident Claims Petition No. 170 of 2005, in so far as the Tribunal has awarded a sum of Rs. 3,69,500/- along with interest at the rate of 7.5% per annum from the date of application till realization.
2. The claimants filed the aforesaid claim petition under the provisions of Section 163-A of the M.V. Act to get compensation on structured formula basis and claimed Rs. 3,93,500/- on account of accidental death of one Shri Kiransinh, who himself on 30.10.2005 was driving an auto- rickshaw bearing registration no. GJ-1-AV-3871 and at that time, he lost control over the auto-rickshaw. As a result, he sustained grievous injures and succumbed to death.
3. Mr. Mehta, learned counsel for the appellant has submitted that the deceased was a driver of opponent no. 1 i.e. owner of the vehicle and having stepped into the shoe of the owner, the Insurance Company is not liable to pay compensation. He submitted that the Tribunal has committed an error in considering the claim of the claimants under Section 163A of the Motor Vehicles Act and therefore the same required to be allowed. In support of his submission, he relied upon the decision of the Ningamma And Another v. United India Insurance Company Limited, (2009) 13
SCC 710.
5. In the case of Ningamma and Another (supra), deceased was traveling on Hero Honda Motor Cycle, which he borrowed from its real owner for going from Ilkal to his native place Gudur. When the said motor cycle was proceeding on Ilkal-Kustagl, National Highway, a bullock cart proceeding ahead of the said motor cycle carrying iron-sheet suddenly stopped and consequently deceased-Ramappa who was proceeding on the said motor cycle dashed against it. Consequent to the aforesaid incident, he sustained fatal injuries over his vital part of body and on the way to Govt. Hospital, Ilkal, he died. The Apex Court has held therein that when a vehicle is borrowed from its original owner and meets with an accident without involving any other vehicle, claim under Section 163-A by the legal representatives of the deceased is not maintainable as the deceased had stepped into the shoes of the owner of vehicle.
5.1 In the present case the deceased borrowed the vehicle from the original opponent No.1 and as he lost control over the vehicle, the deceased sustain injuries and succumbed to death. In the present case also there is no tortfeasor and deceased having stepped into the shoes of the owner of the vehicle, the legal heirs cannot claim compensation. The liability under section 163-A of the MVAct is on the owner of the vehicle and therefore a person cannot be both, a claimant as also a recipient, with respect to claim. Therefore, the heirs of the deceased could not have maintained a claim in terms of Section 163-A of the MVAct. In view of the above discussion and keeping in mind the principle laid down in the case of Ningamma & Anr. (supra), I have no hesitation to hold that the judgment and award of the Tribunal is contrary to law and is liable to set aside and the matter is required to be adjudicated afresh.
7. In the result, the appeal is partly allowed and the following order is passed:
(i) The impugned judgment and award is quashed and set aside.
(ii) The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
(iii) This Court has passed the aforesaid order in view of the fact that the Tribunal has not followed the procedure established by law and therefore the Tribunal may not be influenced by the order of this Court.
(iv) The amount invested in Fixed Deposit, as directed by this Court, shall be continued in Fixed Deposit and the claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(v) It is, however, made clear that interest accruing on the said Fixed Deposit shall be accumulated and will be adjusted at the time of the final award.
(vi) The amount awarded & already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.
(vii) Since the matter is pending since long, the Tribunal is directed to dispose of the case as expeditiously as possible and in any case not later than two years from the date of receipt of the writ of this Court.
(viii) It is observed that this Court has not entered into the merits of the matter and the Tribunal shall consider the same afresh, without being influenced by the fact that this Court has quashed its earlier judgment and award.
(ix) R & P, if lying with this court, to be sent to the Tribunal forthwith.
..mitesh..
(K.S.JHAVERI, J.)