1. This appeal is directed against the judgement and award dated 28.06.2000 passed by learned Motor Accident Claims Tribunal (Main), Bhuj below Ex. 1 in Motor Accident Claims Petition No. 604 of 1999, wherein the Tribunal has awarded a sum of Rs. 2,04,500/- along with interest at the rate of 12% per annum from the date of application till realization.
2. According to the claimant, on 05.06.1999, when deceased Miralben Vaghela was travelling in a rickshaw bearing registration no. GJ-12-U-534 driven by the original opponent no. 4 in a rash and negligent manner, the original opponent no. 1 came from the opposite side on his motorcycle bearing registration no. GAH 9488 in excessive speed and collided with each other. Said Miralben 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. Salil Thakore, learned advocate appearing for Ms. Megha Jani for the appellant submitted that the Tribunal failed to attribute contributory negligence on the part of both the vehicle drivers when the accident prima facie occurred due to the negligence on the part of both the drivers 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 like contributory negligence.
5. In the case of National Insurance Company Ltd. Vs. Sinitha and Others, reported in 2011(13) SCALE 84, 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 as far as the aspect of contributory negligence is concerned.
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 and therefore the Tribunal shall not be influenced by this order. The Appeal is allowed to the aforesaid extent.
(K.S.JHAVERI, J.) Divya//