1. This appeal is directed against the judgment and award dated 27th June 2011 passed by learned Motor Accident Claims Tribunal (Aux), Bhavnagar in Motor Accident Claims Petition No.777 of 2005, whereby the Tribunal has partially allowed the claim petition filed by the claimants.
2. According to the claimants, on the date of the incident the deceased was coming from Alang to his house in auto-rickshaw bearing No.GJ.4X 865 and when the said auto rickshaw reached near Reliance Petrol Pump situated on Trapaj-Tansa Highway, due to rash and negligent driving on the part of the driver of said auto rickshwa, deceased was thrown off from the rickshaw and received fatal injuries. The heirs of the deceased - claimants 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 Parikh, learned counsel for the appellant submitted that the insurance company is not liable on ipsi dixit and despite the specific plea raised by the insurance company in this regard, the same has not been considered by the Tribunal and the Tribunal 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 (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 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:-
The impugned judgment and award is quashed and set aside.
The matter is remanded to the concerned Motor Accident Claims Tribunal for adjudication afresh.
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.
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.
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.
The amount awarded & already withdrawn by the claimant, pursuant to the impugned award, will be adjusted at the time of the final award.
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.
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.
R & P, if lying with this court, to be sent to the Tribunal forthwith.
Appeal is partly allowed with no order as to costs.
(K.S.Jhaveri, J.) *mohd Top