1. This appeal is directed against the judgement and award dated 15.09.2011 passed by learned Motor Accident Claims Tribunal (Main), Kutch at Bhuj in Motor Accident Claims Petition No. 224 of 2009, wherein the Tribunal has awarded a sum of Rs. 4,17,500/- along with interest at the rate of 9% per annum from the date of application till realization.
2. The claimants filed the claim petition under the provisions of Section 163-A of the M.V. Act to get compensation on structured formula basis and claimed Rs. 5,21,200/- on account of accidental death of one Shri Mamad Osman Sama, who expired due to injuries sustained in the vehicular accident occurred on 02.04.2009 when he was travelling in a truck bearing registration no. GRN 3766.
3. Mr. Sunil Parikh, learned Advocate for the appellant submitted that the deceased was an illegal passenger in a goods vehicle whose risk was neither required to be covered nor as a matter of fact covered and therefore the Tribunal clearly fell in error while passing the impugned award.
4. 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 163-A 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. In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 85, it is held that it is open to the owner or insurance company, as the case may be, to defeat a claim under Section 163-A of the Act by pleading and establishing a 'fault' ground.
6. 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. In the premises aforesaid, the following order is passed:
(i) The judgement and award impugned in the present appeal is hereby quashed and set aside.
(ii) The matter is remanded to the Tribunal to consider the same afresh in light of the discussion made hereinabove.
(iii) 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.
(iv) The amount invested in Fixed Deposit, as directed by this Court, shall be continued in Fixed Deposit.
(v) The claimants shall be entitled for the periodical interest on the said Deposit only up to the date of this judgment and order.
(vi) The interest that may be accrued on the said deposit thereafter shall not be disbursed. The amount shall be disbursed as per the final decision of the Tribunal.
(vii) If any amount has been withdrawn by the claimants the same shall be given set off/adjusted at the time of final award.
(viii) It is clarified that this Court has not expressed any opinion on the merits of the case.
8. The Appeal is allowed to the aforesaid extent. R & P if lying with this Court to be sent back forthwith.
(K.S.JHAVERI, J.) Divya//