1. This appeal is directed against the judgement and award dated 22.09.2009 passed by learned Motor Accident Claims Tribunal (FTC-4), Kutch at Bhuj in Motor Accident Claims Petition No. 97 of 2007, wherein the Tribunal has awarded a sum of Rs. 2,97,500/- along with interest at the rate of 9% per annum from the date of application till realization.
2. According to the claimant, on 23.01.2007, when Hasmukh Darji was travelling in a rickshaw with goods, the said rickshaw dashed with an ambassador car being driven rashly and negligently as a result of which said Hasmukh Darji sustained injuries and succumbed to the same. The claimants being legal heirs therefore filed the aforesaid application under Section 163-A of the Motor Vehicles Act wherein the impugned award came to be filed which is challenged in the present appeal.
3. Mr.
Sunil Parikh, learned Advocate for Mr. Mehta for the appellant submitted that the rickshaw is registered as a goods carrier vehicle incorporating the clause that the insurance company is not liable for the use of carrying passengers in the vehicle. He further submitted that the deceased was travelling in the goods vehicle as an unauthorized passenger 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 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 one year 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. The amount shall be disbursed as per the final decision of the Tribunal.
8. It is clarified that Court has not expressed any opinion on the merits of the case. The Appeal is allowed to the aforesaid extent.
(K.S.JHAVERI, J.) Divya// Top