The challenge in this appeal is to the impugned judgment and award rendered by Motor Accident Claim Tribunal (Main), Kutch at Bhuj on 12.10.2011 in Motor Accident Claim Petition No.424 of 2009 whereby the Tribunal under Section 163A of the Motor Vehicle Act awarded Rs.2,49,500/- by way of compensation to the respondent nos.1 to 5, who were the original claimants before the Tribunal, with running interest at the rate of 9% per-annum from the date of filing of the claim petition till the realization with proportionate costs and interest. The appellant-Insurance Company who was original opponent no.2 before the Tribunal and the respondent no.6 who was opponent no.1 before Tribunal, were directed to pay the said amount jointly and/or severally.
As per the case of the original-claimants, the deceased was traveling in a pick up Jeep bearing Registration No.GJ-7Y-1786 and the Jeep met with an accident and in the accident, the deceased died. It was the case of the claimants that the deceased was traveling in pick-up Van along with his goods. The appellant-Insurance Company resisted the claim of the claimants filed under Section 163A of the Motor Vehicle Act and raised various contentions, including the contention that the deceased was traveling in the goods carriage vehicle as a gratuitous passenger. The Tribunal after considering the evidence on record and the submissions advanced on behalf of both the sides and more particularly, after relying upon the case of New India Assurance Company Ltd. Versus. P.Saguna Wd/o. P.Balakrishnan & Ors, reported in 2008(2) GLR 1357, passed the impugned judgment and award.
Learned advocate Mr.Parikh for learned advocate Mr.Mehta for the appellant, at the outset, submitted that P.Saguna's Case (Supra) relied upon by the Tribunal in favour of the claimants was challenged before the Hon'ble Apex Court and the Hon'ble Apex Court has stayed the execution and implementation of the award passed in the said case. It is, therefore, submitted that the very base of the impugned judgment and award passed by the Tribunal does not survive. It is further submitted that considering the evidence on record, it was clear that the deceased was traveling as gratuitous passenger.
3.1 Mr.Parikh, learned advocate for the appellant, drew my attention to the order dated 02.01.2012, passed in this matter and more particularly, Civil Application for stay No.12750 of 2011 and submitted that pursuant to said order, the appellant-Insurance Company has deposited the entire amount with proportionate costs and interest with the concerned claim Tribunal. 70% of amount was ordered to be invested in F.D.R. in any nationalized bank for the period of three years, and thereafter, renewable from time to time till the disposal of the appeal and the original claimants were held to be entitled to receive quarterly interest accruing on the aforesaid amount. It is submitted that pursuant to the order dated 12.03.2010, 30% amount was ordered to be disbursed to the claimants.
3.2 Mr.Parikh, learned advocate for the appellant, drew my attention to the case of National Insurance Company Ltd. Versus. Sinitha & Ors, reported in 2012(2) SCC 356 and more particularly, the discussion made in Paragraph-33 of the said decision, whereby the Hon'ble Apex Court in no uncertain terms, held that even in the proceeding under Section 163A of the Motor Vehicle Act, it shall be for the owner or the Insurance Company to raise various defences and the Tribunal shall consider and deal with the same. In above view of the matter, Mr.Parikh, learned advocate for the applicant, alternatively, submitted that in the instant matter, the Tribunal while passing the impugned judgment and award did not consider the vital defences raised by the Insurance Company, and therefore, submitted that to see that both the sides are given appropriate opportunity, the matter deserves to be remanded and if this Court directs the Tribunal to decide the application afresh, at that time, the initial order passed by this Court in stay application regarding investment 70% amount in the F.D.R. may be continued till the application is heard and decided afresh by the Tribunal.
Mr.Dave, learned advocate for the respondent nos.1 to 5-original claimants, at the outset, supported the impugned judgment and award passed by the Tribunal and submitted that Tribunal has considered the merits of the contentions raised by the Insurance Company, and therefore, the appeal deserves dismissal.
I have taken into consideration the submissions advanced by both the sides, so also the impugned judgment and award rendered by the Tribunal. Considering the impugned judgment and award, at the first place, it transpires that the Tribunal based its decision relying upon the case of New India Assurance Company Ltd. Versus. P.Saguna Wd/o. P.Balakrishnan & Ors, reported in 2008(2) GLR 1357.
Mr.Parikh, learned advocate for the appellant, at the outset, submitted that the decision rendered by this Court and solely relied upon by the Tribunal has been under challenge before the Hon'ble Apex Court and the Hon'ble Apex Court has stayed the implementation and execution of the award in that matter and thus, it is submitted that the decision relied upon by the Tribunal cannot be said to be a final decision since the matter is pending before the Hon'ble Apex Court. It further transpires that the appellant-Insurance Company before the Claims Tribunal raised various defences. Considering the ratio laid-down in Sinitha's case (Supra), even as per the observation made by the Hon'ble Apex Court, when an application under Section 163A of the Motor Vehicle Act is preferred, the Tribunal has to consider all the defences raised by the owner or the Insurance Company of the offending vehicle and shall have to deal with such defences and decide the same in accordance with law. It has been submitted that, in the instant matter, the defences raised by the Insurance Company have not been appropriately dealt with by the Tribunal, solely relying upon the case of New India Assurance Company Ltd. Versus. P.Saguna Wd/o. P.Balakrishnan & Ors, reported in 2008(2) GLR 1357.
Under such circumstances, it would not be just and appropriate for this Court to go much deep into the merits of the matter since the matter requires reconsideration by the Tribunal.
In above view of the matter, this Court is of the opinion that the impugned judgment and award rendered by the concerned Tribunal deserves to be set-aside and the Motor Accident Claim Petition No.424 of 2009 filed by the respondent nos. 1 to 5 (original claimants) under Section 163A of the Motor Vehicle Act is ordered to be remanded to the concerned Tribunal and the concerned Tribunal is required to be directed to decide the said application afresh, in light of the observations made by this Court in the instant judgment and both the sides shall be given opportunity to lead evidence. However, since 70% of the awarded amount is lying in F.D.R. for the period of three years, pursuant to the order dated 24.01.2012 passed in Civil Application No.1275 of 2011 in First Appeal No.3678 of 2011, the said amount shall continue in F.D.R. in terms of said order.
Considering the facts and circumstances of the case, it shall be in the interest of justice, if the concerned Tribunal is directed to expedite the hearing of the said claim petition and to dispose of the same in accordance with law at the earliest preferably within six months from the date of communication of this order.
For the foregoing reasons, the appeal is partly allowed and the impugned judgment and award dated 12.10.2011, passed by the learned Motor Accident Claim Tribunal (Main), Kutch at Bhuj, in Motor Accident Claim Petition No.424 of 2009 is set-aside and the said Motor Accident Claim Petition No.424 of 2009 filed by the respondent no.1 to 5 (original claimants) under Section 163A of the Motor Vehicle Act is ordered to be remanded to the concerned Tribunal with a direction to hear and decide the application afresh, in light of the observation made by this Court in this judgment and the Tribunal shall permit both the sides to adduce evidence and shall decide the said application, in accordance with law, as early as possible, preferably within six months from the date of communication of this order to the concerned Tribunal.
In the meanwhile, 70% of the awarded amount which is lying in F.D.R. in a nationalized bank, pursuant to the order dated 24.01.2012 passed in Civil Application No. 12750 of 2011 in First Appeal No.3687 of 2011 shall continue to remain in F.D.R. as per the terms and consideration laid-down by this Court in said order. The appeal stands disposed of accordingly.
(J.C.UPADHYAYA,J.) Girish